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November 8, 2023
All employers in the UK have a responsibility to stop illegal working, which means you must conduct the correct Right to Work checks.
These checks should ensure that the person you employ is not disqualified from carrying out the work in question due to their immigration status.
If you follow the Government’s guidance and Code of Practice, you will be given a statutory excuse against liability for a penalty if it is later revealed that the person you employed did not have the Right to Work in the UK.
As well as conducting a Right to Work check before employing a person, you should conduct regular follow-up checks on workers, as many individuals’ Right to Work is time-limited and may be dependent on a visa.
Employers can conduct two types of checks – a manual document-based check and an online check.
Both of these methods, if conducted correctly, will give an employer the necessary statutory excuse.
Conducting a manual document-based Right to Work check
The process for conducting a manual document-based Right to Work check involves three steps, all of which need to be completed before employment begins.
If these are not conducted correctly, in the manner prescribed by the Government, then an employer could lose their statutory excuse and may be subject to fines.
Step 1: Obtain – You must obtain original, acceptable documents from an employee. These are broken down into two lists:
The Government has produced a useful checklist to help you confirm you have the correct documents, which can be found here.
Step 2: Check – It is the employer’s responsibility to confirm that the documents provided are genuine and that the presenting them is the person being hired, the rightful holder and allowed to do the type of work you are offering.
The Government’s guidance says that employers should check:
If an employer is presented and accepts false documentation, they will only be liable for a civil penalty if it is ‘reasonably apparent’ that it is false.
Further guidance on examining identity documents can be found on GOV.UK.
Step 3: Copy and Retain – All employers are required to make clear copies of all documentation in a format that cannot be manually altered and retain the copy securely. This can be done electronically or in hardcopy.
To protect yourself, you should also retain a secure record of the date on which you made the check. Simply writing the date at the top of a document may not be sufficient evidence of this and so further steps should be taken.
The Government recommends that employers copy and retain:
Businesses must keep copies securely for the duration of an employee’s employment and up to two years afterwards. Once this period has ended the copy must be correctly destroyed.
Conducting an online Right to Work check
Employers can also conduct an online right to work check in most circumstances, which will provide you with the same statutory excuse against a civil penalty.
You can begin an online check by using the ‘View a job applicant’s right to work details’ on GOV.UK.
Not all applicants can be checked via this system, as some individuals will not have an immigration status that can be confirmed online.
If an online check isn’t possible, the right to work checking service sets out what information you will need to conduct a manual check.
The service can, however, check for those workers that have:
Employers can also use the Employer Checking Service where an individual:
Failure to conduct proper right to work checks could leave your business exposed to an unlimited fine of up to £20,000 for each illegal worker and your business’s details may be published by Immigration Enforcement as a warning to others. In more serious cases, you could even face a five-year jail sentence.
For advice and support please contact Louise McGuire, Head of Payroll at RMT Accountants & Business Advisors on 0191 256 9500 or via the contact us form.