All employers must carry out a right to work check before employment starts, but how many are carrying out follow-up right to work checks in order to continue to benefit from the statutory excuse?

This is the second in a series of three articles about right to work checks. In our first article we explored how to carry out an initial right to work check.

Carrying out a right to work check correctly before the start of employment ensures that an employer benefits from the 'statutory excuse' against prosecution for employing an illegal worker. This means that even if an illegal worker is inadvertently employed, the employer cannot be penalised for doing so.

Individuals with the right to work in the UK either have an ongoing right to work (such as British citizens) or a time-limited right to work in the UK. In relation to the latter, employers can only establish a time-limited statutory excuse, and therefore must carry out follow-up right to work checks, if they are to continue to benefit from the statutory excuse.

When to carry out a follow-up right to work check
The government's guidance on right to work checks contains two lists (List A and List B) of documents which demonstrate an individual's right to work in the UK. List A documents demonstrate a permanent right to work in the UK, whereas List B establish a temporary right to work. List B is split into Group 1 and Group 2.

Group 1 documents give employers a time-limited statutory excuse which expires when the individual's permission to work expires. Follow-up checks should be carried out when the individual's permission to work expires.

Group 2 documents give employers a time-limited statutory excuse which expires six months after the date specified in the Positive Verification Notice (this is obtained from the Employer Checking Service). Follow-up checks should be carried out when the Positive Verification Notice expires.

How to carry out a follow-up right to work check
You should ask the employee to provide documentation in good time before their permission to work expires for further proof of their right to work in the UK.

If further documentation is provided, you should carry out a right to work check in accordance with the guidance, and diarise a further date to carry out a follow-up check if required.

If further documentation is not provided, but the individual tells you that they have submitted an application to extend or vary their permission to be in the UK, or that they have appealed against a decision on that application, employers should submit a check to the Employer Checking Service. The statutory excuse will continue for 28 days to enable an employer to obtain a Positive Verification Notice.

If a Positive Verification Notice is not received within this timeframe then the employer needs to consider terminating the employment of the individual.

Our final article will cover how to fairly dismiss an employee where it is suspected that their right to work has expired.

Tips for employers
You should ensure that your organisation has a robust process in place for carrying out any necessary follow-up to work checks.

Deadlines should be meticulously recorded and widely diarised to avoid missing key dates and give those responsible plenty of time to get the necessary documentation in place.

Such documentation should not just be checked but also verified, as far as possible, and copies kept. File notes should be kept of all activity and communication with the employee.

Those responsible for carrying out the checks in your organisation should be trained regularly to ensure they understand what is required and the potential consequences of getting it wrong.

If you would like to discuss the training and immigration audits we can provide in relation to right to work checks, please contact a member of our business immigration team.