UK employers are under a legal duty to verify that every employee has the Right to Work in Britain.
This requires prescribed document checks to be carried out before each employee’s start date.
In most cases, the checks are likely to be straightforward. But since any allegation of failing to carry out the right to work checks correctly risks civil or even criminal sanctions - including a Home Office fine of up to £20,000 per illegal employee (known as a ‘civil penalty’), it is important for employers to take proactive steps to ensure they remain compliant.
Common areas of risk – particularly among organisations hiring across multiple sites – arise where personnel involved in recruiting and onboarding new workers do not:
- Understand the full extent of immigration duties,
- Have the training or knowledge to meet the Home Office requirements, or
- Implement right to work checks correctly and consistently.
Building right to work compliance into your organisational recruitment process is an effective way to ensure that the document checks are carried out in the manner and at the time that is required by law.
Under Immigration, Asylum and Nationality Act 2006, all UK employers must carry out prescribed document checks on all employees. Irrespective of the applicant’s nationality or race, the checks must be undertaken consistently and without discrimination, for all new employees.
For many organisations, it makes practical sense to specify that right to work checks are to be conducted at the same time as the standard confirmation of identity checks.
By law, before the applicant’s employment start date, you must i) obtain, ii) check and iii) copy acceptable documents confirming they can be legally employed to undertake the role on offer:
Before the employee can commence employment with you, they must physically present to you acceptable documents that verify their right to work.
The types of documents that are to be accepted are specified by the Home Office in List A and List B. The applicable list will be determined by the individual’s working status at the time of onboarding, eg applicants with restrictions on their working rights are generally required to produce documents from List B.
If the applicant produces a valid document from List A and the right to work checks are carried out in the correct way, no further checks will be needed for the duration of that individual’s employment with that employer.
List B employees carry more compliance risks since their right to work will generally be time-restricted. This places additional burden on the employer to carry out checks on a regular basis to verify ongoing validity of documentation and continuing right to work.
Where your business uses temporary staff through an agency, generally, the right to work duties lie with the agency employing the workers.
However – if you do use staff supplied by an agency, it is sensible to have a written undertaking/warranty from the agency, confirming it has carried out the prescribed document checks correctly and in line with the Home Office’s guidance. Take legal advice if you have any questions in this area.
Note however that where you use an agency to find an employer who will be employed by you - the responsibility for carrying out the right to work check rests with you in the usual way. You cannot delegate the check to the agency and risk a civil penalty if you do this.
Employers are also required to confirm that the documents produced are genuine and relate to the individual stood before them. This means checking information such as date of birth, that the name on the documents match and that the photo is a true likeness of the applicant.
Staff carrying out the checks are also expected to pick up at the point of checking where documents appear forged. It’s not necessary for staff to be experts in forgery - but onboarding staff are expected to show a reasonable degree of scrutiny when checking documents and following up any concerns in order for the employer to rely on the statutory defence in the event of any issues by for example making use of the Employer Checking Service where confirmation of right to work is sought.
There is clearly a training requirement here for internal staff, to familiarise and identify common types of forgery and to provide guidance on what to do in the event of any concerns.
If the type and validity of the documents presented are accepted, the next step is to copy and record them in the prescribed manner.
Employers are expected to retain copies of right to work documents for at least 2 years after an employee has left the organisation, as the Home Office can request sight of these records during this time.
If your business is unable to produce the records, in a format that is required, you may be penalised.
Recruitment & prevention of illegal working
Given the significance of performing the checks in the correct manner, it can be useful to detail in a centralised and accessible document such as the organisational recruitment policy the specific steps required to obtain, check and record acceptable forms of employee documentation.
This becomes particularly helpful where the individual is not a UK or EU national, as the documentary requirements are more complex.
It’s also crucial that all staff involved in recruitment and onboarding are fully aware of any new requirements, generally requiring training for all those involved in the day to day processes such as line and site managers, as well as HR.
The immigration rules change frequently, yet employers are expected to keep pace and adapt their internal policies and processes accordingly. Taking legal advice will help ensure you are aware when changes are happening, what those are and what you need to do to remain compliant.
Where there are changes in the Home Office right to work guidance, you will need to assess if and how your recruitment and onboarding process requires amendment.
Right to work compliance matters
As a mandatory requirement on all UK employers, right to work checks present compliance risks if managed or implemented incorrectly.
By carrying out the duties in the prescribed manner as part of your immigration risk management, and having evidence to support this, where allegations of non-compliance arise, you should be in a position to rely on a statutory excuse to challenge any Home Office sanction.