Right to Work Checks
Employers have a responsibility to prevent illegal working by ensuring that all employees have a right to work in the UK. This sounds very straight forward doesn’t it and yet there are so many employers who are not able to demonstrate their compliance with this law which was introduced in 2006 to try and control the exploitation of migrant workers and cut down on tax evasion by unscrupulous employers. There are hefty fines for getting this wrong as employers can now face a fine of up to £20,000 for a breach of the law.
So, what do you have to do to ensure you can sleep at night knowing your checks are in place for all your staff? You will need to establish a statutory excuse, otherwise known as a ‘right to work check’. There have been recent changes to conducting a right to work check which this blog will also cover.
There are 3 basic steps to conducting a manual right to work check and you will need to do this before you start the employee working with you:
1. Obtain original versions of one or more of the acceptable documents (see below)
2. Check the documents in the presence of the holder of the documents; and
3. Make copies of the documents, retain the copies and keep a record of the date on which the check is made
The acceptable documents must be original, and you must check that they are genuine, that the person presenting them is the rightful holder and is allowed to do the work you are offering.
How do I check that the document is genuine?
You should check photographs and date of birth and ensure they are consistent across all documents and check that expiry dates for leave have not passed. You should also check the reasons for any different names across documents e.g. marriage, divorce, deed poll.
Where do I check what documents are suitable?
There are two lists – List A and List B - which are on the gov.uk website. List A details the range of documents for a person who has a permanent right to work in the UK. List B contains the range of documents for someone who has a temporary right to work in the UK.
Previously employers had to undertake these checks manually however from 28 January 2019, employers have the option to conduct the right to work check online using the Home Office online right to work checking service (https://www.gov.uk/employee-immigration-employment-status).
You will be able to conduct an online check only where the candidate has a biometric residence permit number or a biometric residence card number; or has been granted settled status under the EU settlement scheme. In addition, the person must have shared right to work details with the employer using the Home Office “prove your right to work to an employer” online service - https://www.gov.uk/prove-right-to-work
If using the online service, the employer must check that any photograph on the online right to work check is of the candidate and keep a clear copy of the response that the online right to work check service provides.
Do I have to undertake this check for all staff or just those who are from outside the UK/EU?
It is good practice for the employer to follow the same approach for all job applicants or staff and not just for those whom the employer thinks may not have the right to work in the UK. This strategy will help to avoid a potential discrimination claim based on race (i.e. you have treated one person less favourably than another on the grounds of their race which includes nationality, colour, ethnic or national origin).
What are the common errors undertaking these checks?
1. Not keeping a copy of the evidence that you have conducted the right to work check;
2. Conducting a manual check of documents when it is reasonably apparent that the documents are false or perhaps belong to somebody else;
3. The person does not have valid permission to work in the UK or is subject to an immigration condition preventing them from carrying out the work in question;
4. The statutory excuse was time-limited and has expired;
5. When employing a student not complying with a restricted right to work in the UK.
Can I keep these records under the new data protection legislation?
Yes, you can and must. This is a legal requirement and you therefore do not need to ask your employees, or prospective employees, for their consent. However, this should be explicitly covered in your data protection policy and privacy statement.
How does Brexit affect this?
When the UK leaves the European Union, there will still be a requirement to undertake these checks of all your staff regardless of where in the world the individual has been residing. It is likely that there will be restrictions on EU citizens as to the length of stay in the UK and the work they can undertake. Whilst some information has been issued by the UK Government, there is likely to be more information depending on whether there is a deal or no deal departure. It is important to keep up to date regarding this and use the Gov.uk website to undertake the checks.
I have just TUPE’d over some new staff. Do I have to re-do these checks?
If the previous employer undertook the right to work checks properly there should be copies of the documents in the employees’ personnel files which should also come with the staff. If there are no records of the checks having been done, then be aware that there is a grace period of 60 days from the date of the transfer of the business to correctly carry out the first statutory right to work checks in respect of acquired employees. There is no such grace period for any follow-up checks to retain the excuse.
This is a really important step in avoiding very expensive penalties which can happen even if you have conducted the right to work checks but have not got a copy of the evidence.
If you have any queries whatsoever, please contact me via email: [email protected]
Caroline