How To Conduct A Right To Work Check

In this article, Georgina Thomas, Associate Director at BRIDGE, details the different ways UK Employers can conduct right to work checks and explains the risks that come with not carrying out a right to work check properly.

As an employer, you are:

• under a legal duty to carry out right to work checks on all individuals before you employ them; and
• also, under an obligation to re-check existing workers if their original permissions are time limited.

Not doing, or not doing so properly, means you might employ someone illegally which carries a raft of penalties.

So, how do you do this properly?

This can be done manually or by using digital or online services.

Manual check

If you choose the manual process, there are three steps to carry out before employment commences:

1. Make sure you obtain original documents from the potential worker – check Appendix A (List A or B) of the list of acceptable documents on GOV.UK for what these are.
   
   
2. Check the documents carefully – and do so in the presence of the worker, either in person or via video link: You are looking to make sure that the documents:

• are genuine – look closely to make sure they have not been tampered with;
• are being presented by the person who is the prospective employee – look at photos closely for likeness and make sure that dates of birth are consistent across documents;
• are presented by the person who is the rightful holder – if there are any changes to names across documents, get documents to evidence why (such as a marriage certificate or divorce or deed poll documents) and keep a copy; and
• evidence that the person is allowed to do the work you are offering – check that any expiry dates have not passed and look to make sure there are no restrictions or conditions on the type of work they are allowed to do - if in doubt, check!

3. Make clear copies and keep them securely, electronically or in hard copy. As part of this, you must:

• Keep a secure record of the date you carried out the checks;
• Make sure that copies are taken of any relevant pages (for example with expiry dates, dates of birth, nationality, immigration permissions, biometric details, photographs and any visa or entry stamps – get copies of all of this information);
• Keep copies of any other relevant documents too, such as immigration status documents or application registration cards; and
• Keep them for the duration of the worker’s employment and for two years after before securely destroying them.

If you do all of the above, then you should be protected from any form of civil penalty – even if you do accidentally employ someone illegally – this is called getting a statutory excuse but it requires careful compliance with all of the above steps.

Digital Check

From April 2022, you can also use an Identity Service Provider (IDSP) to do the digital identity verification element of right to work checks via Identity Document Validation Technology (IDVT) – but only for British and Irish citizens who hold a valid passport.

This will let you get the evidence of identity digitally, checking it is valid and belongs to the person claiming it – saving time and giving much needed reassurance!

Using this method will also give you that statutory excuse – continuously – but you can’t force it, if an individual does not want their identity to be checked in this way, you must be prepared to do it the manual way instead.

If you do want to use an IDSP, then we advise that you choose from the list of certified providers on GOV.UK to be sure that they are able to provide the required checks for that reassurance.

And the steps to take if you do it this way………

• Make sure that the photo and biographic details on the digital check match the individual presenting themselves for work so you can be sure it’s them; and
• Keep a clear copy of the IDVT identity check for as long as they are employed and for two years after.
  
  

Online Check

And what about Home Office online checks?

This is an option too, but only in certain circumstances where the individual has an immigration status that can be checked online.

In short, the individual needs to have selected to share their immigration status in this way for working purposes. If they do, they get a share code that they can then pass to you, enabling you to access their information.

There are time limits that apply here and issues with codes expiring can crop up but, if done properly, this will also give you the protection of that statutory excuse with the following added benefits:

• You don’t need to see the physical documents as the right to work information is provided in real-time, directly from the Home Office; meaning that
• Checks can be done by video call.

Steps to follow to do it this way:

• Get the share code from the individual;
• Access the service via GOV.UK;
• Enter the share code;
• Enter the date of birth;
• This will bring up the information regarding that individual, including a photo;
• Check the photo matches the individual you propose to employ;
• Check that they have the right to work and check any conditions on that right – all online;
• If all is OK, then you can proceed to employ them; and
• Retain evidence of the check online – print or save in pdf and store it securely for the duration of their employment and for two years after.

We will provide a blog update next month on Biometric Residence Permits.

What happens if you don’t do your right to work checks properly?

If you have carried the checks out properly so that the statutory excuse applies (and can evidence that), then you will not be liable for a civil penalty if the individual you employ is not legally able to work for you – though be aware, you may still be liable for other sanctions (see below).

What happens if you don’t check properly?

Working illegally is a criminal offence and you will be liable, as a business, if you don’t carry out all the steps to prevent it – even if you have delegated the checks to a member of staff to carry out, the organisation remains liable.

The penalties are wide and include:

• A civil penalty of up to £20,000 per illegal worker!
• Potential criminal convictions with a possible prison sentence and an unlimited fine;
• Having your business closed;
• Being disqualified as a director;
• Seizure of earnings made as a result of illegal working; and
• Being named and shamed in a list of non-compliant employers.

We recommend that you add an audit of right to work checks to your list of New Year’s Resolutions as the cost of getting this wrong can be huge.

MY Tips on how to check fairly

• Be consistent in how you carry out the checks – this includes all prospective employees, including British citizens!
• Don’t only check the status of people who appear to you to be migrants; and
• Don’t make assumptions about someone’s right to work in the UK based on their colour or ethnicity; accent or surname….

….as doing so could lead to discrimination claims. Remember the Equality Act 2010 protects job applicants too, not just those already working for you.

And, don’t forget to monitor carefully and recheck those people whose rights to work here are time limited. Have robust systems in place with reminders to flag expiry dates so that you are sure you are able to continue to employ them without doing so illegally.

If you require any further advice or assistance on this, please contact the team on 01904 360295 or enquiries@bridgeehr.co.uk