Checking the ‘Right to Work’

Union jack pink and blue

Recruiting new team members is both time consuming and costly, but imagine going through the process of placing an advert, shortlisting, interviewing, selecting and referencing someone, only to find out on their first day at work that they haven’t either got the right to work in the UK, or they are limited to certain hours per week term time because of the terms of their visa? Although hugely frustrating, it is not something that can be overlooked.

Every employer has a responsibility to prevent illegal working in the UK and regardless of the impact of Brexit, that will not change – if anything it may become more onerous.

So what are the risks and penalties?

Well you might be surprised to learn that according to an employer could be sent to prison for up to 5 years and be required to pay an unlimited fine if they are found guilty of employing someone who knew or had ‘reasonable cause to believe’ they didn’t have the right to work in the UK.

This can include, if you had any reason to believe that:

* They didn’t have permission (leave) to enter or remain in the UK
* Their leave had expired
* They weren’t allowed to do certain types of work; or
* Their papers were incorrect or false.

You could also be penalised if you if you were found to have not completed the necessary checks, or, failed to do the checks properly.  The result of which could bef a ‘referral notice’ and a potential fine of up to £20,000 for each illegal worker. To avoid a penalty you must be able to demonstrate that you carried out the correct ‘right to work’ checks.

Before you reach this stage, our advice would be to ask anyone invited for interview to bring evidence of their ‘right to work’ in the UK along with them. You would need to be mindful that it is only a verification in the context of the job and hours offered, not as a means to decide between candidates which would be discriminatory practice. But ultimately this early confirmation could make the recruitment process more efficient and ensure that parties are aware of working restrictions, which may be even factored into offers made.

3 basic steps to completing a ‘right to work’ check:
  1. Obtain original versions of one or more (preferably 2) of the acceptable documents listed on the Government website ( link below)
  2. Check the provided document’s validity in the presence of the document holder
  3. Make and retain a clear copy of the documents provided and record the date the check was made
Also check that:

* The documents are genuine, original and unchanged, and belong to the person who has given them to you;

* The dates for the applicant’s right to work in the UK is in date and has not expired;

* Photos are consistent across documents, and that the photos resemble the individual;

* Dates of birth are the same across all documents;

* The applicant has permissions to do the work you are offering;

* There are no limits on the number of hours they could work;

* Students can provide evidence of their study and vacation times;

* Where documents give two different names, the applicant has other evidence to show why they are different such as a marriage certificate, divorce decree or proof of name change.

Click to link to the full list of acceptable documents.

Charlotte Allfrey