It is essential that all employers know how to conduct a right to work check on their potential employees. If an employer gets this wrong, they are risking a fine of up to £20,000, a prison sentence of up to five years, or both, for employing an illegal worker.
Right to work checks must be conducted in relation to all potential employees, regardless of nationality or ethnic origin, before the employee starts work.
What is a right to work check?
Essentially, a right to work check requires an employer to either:
• obtain, check and copy a document from the list of approved documents to prove the potential employee’s right to work in the UK; or
• check their right to work status online.
The full list of approved documents can be found in the Employer’s Guide to Right to Work Checks.
Adjusted right to work check measures
Temporary adjusted right to work check measures were put in place on 30 March 2020 due to the pandemic which allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer was then allowed to conduct a right to work check by checking the original documents via a video call and marking the copy ‘adjusted check undertaken on [insert date] due to Covid-19’.
However, these adjusted right to work check measures came to an end on 30 September 2022. Therefore, since 1 October 2022, if employers wish to carry out a manual check of right to work documents, this will need to be done in person.
Right to work checks since 1 October 2022
In summary, since 1 October 2022, employers now have three options in relation to right to work checks:
• Carrying out a manual check: this involves meeting the potential employee in person, checking their original right to work document, copying it and marking the copy ‘right to work check undertaken on [Date]’.
• Where the potential employee is an overseas national with a biometric work or residence permit. These individuals’ right to work can only be checked online. They must provide their date of birth and a share code to the employer who will then be able carry out an online right to work check. Face-to-face manual right to work checks are no longer enough to establish a statutory defence against a civil penalty in relation to these individuals.
• Employers can use certified Identity Service Providers (IDSPs) to complete digital right to work checks for British and Irish citizens (as long as they hold a valid passport). This is an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers using Identity Document Validation Technology.
When should employers carry out a right to work check?
Every new employee needs a right to work check. Even if you and a candidate go ‘way back’, you must conduct a right to work check before any contract is signed. It is a fundamental step in the pre-employment process and it is recommended that checks are carried out at interview stage to avoid wasting time and money.
Where an individual is already employed in a business, or has an outstanding visa/immigration status application, employers should check this by using the government’s free online Home Office Employers Checking Service (ECS).
If the person has a right to work, the ECS will send you a ‘Positive’ or ‘Negative’ verification notice within five days. This provides a legal defence for employers for up to six months, in case the individual’s immigration status expires in this time.
You do not need to do checks for existing employees from the EU, EEA or Switzerland if they came to the UK before 1 July 2021.
Do UK citizens need a right to work check?
Yes, British or Irish citizens should provide certain documents for a right to work check but these are typically easier to find and quicker to approve.
In the first instance, British or Irish applicants should show their passport (regardless of whether it has expired).
If this is not possible, they will need to show their employer two alternative documents:
• A document with their name and National Insurance number on it. This can either be from the government or a previous employer, for example, a P45 form.
• A birth or adoption certificate (or a certificate of registration or naturalisation).
In a nutshell….
Hiring has become a major source of stress for employers in the last twelve months as “The Great Resignation” has seen thousands quitting jobs across all sectors. As a result, a record number of employers are searching for alternative hiring routes, like recruiting from overseas.
Knowing how to legally and ethically source staff from both the UK and abroad will give employers access to a wider pool of applicants during what has become a troubling recruitment run.
For advice contact nicola.goodridge@goodhr.co.uk or on +44 (0)7917878384
