Right to Work Checks for Employers
The primary purpose of right to work checks is to prevent illegal working. These checks are also there to ensure that employers only employ, and keep in their employment, those with the right to work in line with relevant UK legislation.
Adequate records demonstrating that employers have carried out the necessary right to work checks are required by law. Employers who carry out right to work checks correctly will have a “statutory excuse” if it later comes to light that persons in their employ did not have to the right to work in the UK. A statutory excuse provides protection from civil liabilities and even criminal sanctions if it were later shown that an employee did not have the right to work when that individual was employed, or at a later stage while they were still employed.
Who do right to work checks need to be carried out on?
Right to work checks apply to everyone in the UK, including British citizens.
Who is responsible for carrying out right to work checks?
Employers are ultimately responsible for carrying out right to work checks but in practice this is by no means limited to people who own or run their own business. In many cases the actual responsibility for carrying out these checks and retaining the appropriate documentation may be delegated to Human Resource staff or others responsible for carrying out this function in an organisation or business.
Employers however remain liable for right to work checks even when they are carried out by members of their staff.
When right to work checks are carried out by third parties, employers will not be able to rely on them for the purpose of establishing a statutory excuse. Third parties include all those not employed directly by the employer. Examples of third parties include recruitment agents, advisers and other companies involved with the transfer of employees under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE).
What type of work checks can employers carry out?
Employers may carry out either manual or online right to work checks. Helpful information on the checks that need to be carried out can be found in the Home Office’s Employer right to work checks supporting guidance document. Reference should also be made to the following documents:
- Code of practice on preventing illegal working: Civil penalty scheme for employers
- Code of practice for employers: avoiding unlawful discrimination while preventing illegal working
The Home Office’s guidance referred to above also directs employers to make use of the Employer Checking Service (ECS) where this is necessary. According to the Home Office guidance this may occur where an employer has been presented with any of the following documents:
- A Certificate of Application which was issued less than 6 months ago and indicates that the holder is permitted to work
- An Application Registration Card which has not expired and states that the holder is allowed to undertake the work for which he is seeking employment
- Where an individual has provided evidence that he has submitted an Appeal or an Administrative Review and is awaiting a decision from the Immigration and Asylum Chamber or the Home Office
- Where an employer has not been provided with acceptable document but has been presented other documents suggesting that the individual has been resident in the UK before 1988
In instances such as those above, employers will need to be issued with a Positive Verification Notice (PVN) from the Home Office to employ persons presenting such documents.
Manual document based checks and online checks, if conducted in the prescribed manner as set out in the Home Office guidance, will provide employers with a statutory excuse.
Manual document based right to work checks
The Home Office guidance sets out three steps that need to be followed to ensure full compliance with manual document based right to work checks. These steps include obtaining original documents noted as belonging to either List A or List B categories. List A includes documents for persons who have a permanent right to work in the UK while List B documents include documents for persons who have a temporary right to work. The next step requires employers to assess that the documents presented to them are genuine and belong to those who are presenting them. Employers need to review these documents to carry out basic checks, such as whether the photographs and personal information contained in all the documents are consistent. The final step requires employers to keep a clear copy of the documents presented as well as retaining a secure record of the date when the check was carried out as prescribed in the guidance.
Online right to work checks
Online right to work checks also provide a statutory excuse in the same way that manual document right to work checks do. Online right to work checks can be carried out by employers using the View a job applicant’s right to work details portal on GOV.UK.
Not all right to work checks can be carried out in every circumstance. In some cases due to the immigration documents held by a jobseeker are such that only a manual check will be possible.
The guidance sets out the documents that need to be provided to conduct an online right to work check.
Employers must not discriminate against employees because they have expressed a preference for a manual document check as oppose to an online right to work check. The only exception permitted is when an employee or potential employee is on a digital status only route.
To carry out the online right to work check an individual will need to view his Home Office right to work record. This can be done via View and prove your Immigration Status portal on GOV.UK by the employer. Individuals can generate a “share code” from this Home Office portal. Once a share code has been obtained the individual can share this with an employer, along with his date of birth. The employer can then access details about the employees right to work details by visiting the View a job applicant’s right to work details on GOV.UK.
The share code generated from the View and prove your Immigration Status is only valid for 30 days, so an employer must use the code obtained by the employee during the validity of the share code.
The documents that need to be produced by potential employees and those already employed are set out in the Home Office guidance.
There are three steps that must be followed to complete the online right to work check:
- The employee obtaining and giving his employer the share code and the employer viewing the employee’s Home Office work record.
- The employer to confirm that the photograph on the right to work Home Office portal is that of the employee or potential employee who the check is being performed on.
- The employer to ensure that a record of the check is retained.
Retaining a record of the online right to work check is extremely important as it is evidence of this that provides a statutory excuse against civil liability. The Home Office guidance states that the “profile” page which contains the individual’s photo and the date on which the online check was made should be retained. This can be done by printing out the profile page or by saving it as a PDF or HTML file. The document generated must be kept while the employee is still employed and for at least two years after the individual in question has left that employment.
Consequences of employing illegal workers
Civil penalties and criminal sanctions may be applied where employers have employed or retained illegal workers. Civil penalties may include fines of up to £20,000 per illegal worker and the inability to employ migrants. Where an employer is subject to immigration control, the Home Office may take this into consideration when that employer submits future immigration applications. Other civil penalties may include disqualifying employers from being directors, revoking private hire vehicle and taxi licences and licences related to the sale of alcohol and late night refreshment. In more serious cases, erring employers may be subject to unlimited fines and a prison sentence of up to five years. Serious cases will usually include situations where employers knowingly employed illegal workers or employed persons where there ought to have known that the individuals concerned did not have the right to work.
What employers need to do if they require clarification?
Where employers require clarification in relation to right to work checks, they have a number of options. The Home Office guidance referred to above is a very useful source of information. Employers may also make use of either the “Check if someone can work in the UK” interactive tool or the “Employer Checking Service Enquires” which is also an interactive tool. Other very useful sources of information, are the Code of practice on preventing illegal working: Civil penalty scheme for employers and the Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working. Employers may also refer to “An employer’s guide to the administration of the civil penalty scheme”.
Employers are also advised to call the Home Office’s Employer Enquiry helpline, which is 0300 790 6268 in the event that they are unable to find the answer to their question from the sources above.
Source: Employer right to work checks supporting guidance issued on 1st July 2021 (produced by the Home Office)
Please contact us if you would like more information about the issues raised in this article of any aspect of immigration law.
Relevant links:
https://www.gov.uk/government/publications/right-to-work-checks-employers-guide