An Employer’s Guide to the Right to Work in the UK

All UK employers have an obligation to comply with the Right to Work in the UK checks at the beginning of every recruitment process for all potential employees.

Note: Omitting to conduct such checks on particular individuals may result in potential claims for unlawful discrimination. 

How do you do this? Follow 3 simple steps:

  • Obtain a copy of the prospective employees’ Right to Work, in order to ensure they provide all the documents required in time. For instance, an individual who requires a work permit under the Skilled Worker route also allows the employer to deal with the sponsorship. 
  • Check that the employees have provided the correct documents
  • Retain a copy of each of the employees’ documents with the relevant dates included. Copies of the documents should be kept with the employer for the employee’s whole term of employment, as well as two additional years after leaving.

Once these three steps have been completed, a follow-up on the employee’s Right to Work check will depend on the documents which have been relied on for the initial check, i.e. whether the employee has provided documents from List A or List B. 

  • Those relying on documents from List A have a ‘continuous statutory excuse’ and will not need to conduct further checks on the employee for the full duration of their employment. 
  • If the employee is providing documents from List B (Group 1), employers only benefit from a ‘time-limited statutory excuse’, meaning a follow-up check is required once the employee’s permission to work expires. 
  • Documents provided from List B (Group 2) also have a ‘time-limited statutory excuse’ expiring 6 months from the date on the employee’s Positive Verification Notice; a further check should be made on the expiry of this date. 

Employers may also, in some circumstances, conduct online document checks rather than manual checks. This provides a quicker, easier, and safer way of ensuring the legitimacy of immigration documents. Individuals are given a Right to Work share code which can be passed on to their prospective employer to conduct the online check using the Home Office employer checking service.

Undertaking the steps adequately and as prescribed by law provides employers with a defence of a civil penalty for any matter arising from an employee’s immigration status or right to work in the UK. 

If an employer is found to be in breach of these requirements, they may be liable to face a fine of up to £20,000 per illegal worker. Further sanctions may also arise. Also note that such checks are required to be taken by the employer themselves and are not permitted to delegate this responsibility to a third party, otherwise, they will be unable to rely on the statutory excuse as mentioned above. 

Note for EU workers in the UK – Until 1st July 2021, all checks for EU employees remain the same, i.e. by proving their right to work using a valid passport or another identification card. As of the 1st July 2021, due to the EU Settlement Scheme, EU workers will need to provide proof of their status or a valid work permit.

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