When should a check be made?
There are three situations when a valid check should be made:
- an initial check, which should be made in all cases before the employment in question begins;
- repeat checks, which should occur in certain cases during the course of a person’s employment;
- checks after staff have joined the employer following their transfer under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE 2006).
The initial check is required for all individuals who take up an offer of employment or apprenticeship. It must be conducted before the period of employment begins. If not, the check will be invalid, and the employer will not have a defence to a civil penalty.
How to carry out the check
A thorough right to work check will involve:
- Obtaining original documents which demonstrate the prospective employee has the right to carry out the work in question. The Home Office provide a list of acceptable documents for this purpose.
- Checking the validity of the documents in the presence of the applicant to ensure that the documents belong to the prospective employee and are not forged.
- Copying and securely retaining the documents and making a record which confirms the date of the check and then diarise to conduct a follow up check (if applicable).
Our video Employers' Guide: Employee Right to Work Checks further explains these steps you can watch our video here.
If employers are caught employing illegal workers, they may be issued with a civil penalty of up to £20,000 per illegal worker or, if convicted of the criminal offence of knowingly or having reasonable cause to believe that the individual was an illegal worker could, depending on the seriousness of the offence, incur an unlimited fine, and/or a prison term of up to five years.
These penalties are in addition to a damaged reputation and the name of your business being published on the Home Office's 'name and shame' webpage.
The Home Office can conduct spot checks on a business at any time. The officer carrying out the spot check can request documents from the employer to show that its employees have the right to undertake the work for which they are employed.
It is therefore vital that employers carry out right to work checks correctly and retain the relevant documents to be prepared for a spot check. Ashfords' Immigration team provide a comprehensive audit service, tailored to your business needs, to ensure that right to work checks have been carried out correctly and the relevant evidence is retained. As part of our audit service, we provide practical advice to rectify past issues and advise on best practice to ensure compliance with the Home Office's guidance on right to work checks.