Right to Work Checks: Are You Sure You’re Compliant?

Posted Monday, October 9th, 2017 by Debbie Lamb, Sterling Talent Solutions

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Right to Work Checks: Are You Sure You’re Compliant?

In the UK, all employers are required by law to check to see if their employees have the right to work in the UK. Failure to ensure your employees actually have the right to work in the UK can lead to heavy penalties and fines. Sterling Talent Solutions’ Steve Smith and James Reardon of KPMG presented a webinar, “Right to Work Checks: Are You Sure You’re Compliant?” to walk through the steps a company needs to take to help them identify and fix potential gaps in the Right to Work process.

What Are an Employer’s Obligations Regarding Right to Work Checks?

Certain people are automatically entitled to work in the UK while others may have restrictions around their eligibility to work, how long they can work in the UK and what type of work they can do. Under UK law, the employer plays a role in preventing illegal working by undertaking simple checks on employees’ eligibility or right to work in the UK. The Right to Work check is required to be completed before employment. If an employee has time-limited permission to work in the UK, follow-up checks will be required.

The UK Home Office has set specific rules for Right to Work that an organisation must follow before employing an applicant. The rules state that a company must:

  • See the applicant’s original documents
  • Check that the documents are valid with the applicant present
  • Make and keep copies of the documents and record the date you made the check

Which Documents are Acceptable and What Must Be Checked?

When checking the documents, a company must thoroughly examine the Right to Work documents on two different lists: List A and List B. The Home Office also lists the following requirements when inspecting the documents in person:

  • The documents need to be genuine, original and unchanged and belong to the person who has given them to you
  • The dates for the applicant’s Right to Work in the UK haven’t expired
  • Photos are the same across all documents and look like the applicant
  • Dates of birth are the same across all documents
  • The applicant has permission to do the type of work the company is offering (including any limitations on the number of hours they can work)

The Home Office has published the Right to Work Guide to Acceptable Documents which provides information about the documents which are acceptable for companies to check to establish someone’s right to work. List A contains documents which a business can accept for a person who has permanent right to work in the UK. If the right to work check is done correctly before employment begins, they will establish a continuous statutory excuse for the duration of that person’s employment with no further checks needing to be conducted. List B contains documents which may be accepted for a person who has a temporary right to work in the UK. Companies will be required to conduct a follow-up check to retain the statutory excuse.

How to Take Copies of a Candidate’s Documents

By following a three-step Right to Work check process before an applicant gets hired, a company will have a statutory excuse against liability for a civil penalty. Companies can obtain a statutory excuse by simply checking their employee’s documents that demonstrate they can work in the UK.

The three steps to follow are:

  • Obtain the person’s original documents
  • Check the validity of the documents in the presence of the holder
  • Make and retain a clear copy and record the date of the check

Employers need to make a complete copy of the documents provided by the applicant. Employers should copy any passport page with the expiration date and applicant’s nationality, date of birth and photo and work endorsements. Biometric residence permits and residence cards should be copied on both sides. The copies of the Right to Work documents need to be kept on file and stored for two years after the employee has stopped working for the business.

What If a Candidate Cannot Show Their Documents?

If the job applicant can’t show Right to Work documents, a company must ask the Home Office to check the potential employee’s immigration employment status. The responsibility is on the employer to check that a potential employee has permission to work in the UK. Employers should give the candidate an opportunity to demonstrate they have the right to work. The hiring organisation should consider keeping the job offer open while they do so. But if the position needs to be filled urgently, the employer is not obliged to keep the job offer open indefinitely. Ultimately if the candidate cannot demonstrate a right to work, the hiring organisation should not employ the candidate.

Companies can face penalties and criminal offences if they are found to be employing a person subject to immigration control with no right to work for the job in question. A fine of up to £20,000 could be applied for each illegal worker found in your employment. A company could also be charged with a criminal offense where they could be sentenced to prison for up to five years with an unlimited fine.

Right to Work Checks as Part of a Comprehensive Background Screening Programme

Right to Work documentation verification as part of a comprehensive background screening programme helps to guide employers on best practice, as well as supplement their own investigations to ensure their employees have the legal right to work in the UK. Document verification supports a company’s statutory excuse by performing a more thorough verification of the documents. It ensures the right combination of documents are being examined and highlights any restrictions and expiry date as well as checking reference numbers against official algorithms and databases to ensure their validity. It is important to remember that by law, the liability ultimately lies with the employer and not with any third-party acting on their behalf.

Updates to the Right to Work Process

New technology is coming soon that will help enhance the Right to Work process. The technology will give a clear audit trail that appropriate checks are being carried out, reduce the risk of losing paper documentation, make checks possible in places without access to photocopiers or scanners, and will provide increased speed to the employee onboarding process due to a more consistent ‘right first time’ submission making mistakes quicker to rectify.

Brexit is likely to affect the Right to Work documentation, process and rules. Companies will need to keep an eye on the Home Office website for updates or have a third-party screening provider who are up-to-date with the changes.

To learn more about the Right to Work process and the applicable documentation, access the On Demand version of the “Right to Work Checks: Are You Sure You’re Compliant?” webinar.

PLEASE NOTE: Sterling Talent Solutions is not a law firm. The material available in this presentation/publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.