Welcome to this HR Blast from Jaluch. Pandemic or not, legislation continues to evolve and a key piece of knowledge for employers, recruiters and managers is around Right to Work.
Essentially, employers must carry out checks to make sure that the people they employ have the right to work in the UK. The fines are huge if you get this wrong, so please do take a few minutes to read through the guidance below and remember that across the past year we have lots of new managers and recruiters who may not have undergone any training in this area.
How to make right to work checks
Employers should ask all applicants to demonstrate their right to work using either a manual document check as set out on the Code of Practice and/or via the Home Office online right to work checking service. More detail on this below.
Since 28 January 2019 employers have had the option to carry out either a manual or online right to work check. Failure to carry out checks can result in a civil penalty.
Timing of checks
The law is pretty clear on this stating: You should conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you.
In practice, this means either before they begin work with you or at the start of their first day or shift with you.
From 1st July 2021, the list of acceptable documents an employer can use to check an applicant’s eligibility to work in the UK via the manual document check (as detailed in the Home Office’s Code of Practice on preventing illegal working) has changed.
Irish nationals continue to be able to live and work in the UK and are not impacted by the new right to work checks.
From 1st July 2021 EEA and Swiss citizens (other than Irish Nationals) will have to provide confirmation of their settled status under the EU Settlement Scheme. This is due to changes in the way EEA citizens from the 1st July are required to evidence their right to work
If an employer fails to carry out a right to work check as per the Code of Conduct, they could face a civil penalty fine of up to £20,000 for each illegal worker. This is the fine for just failing to carry out the right to work checks.
In addition to the civil penalty for not checking, you can be sent to jail for 5 years and pay an unlimited fine if you’re found guilty of employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK.
This includes, for example, if you had any reason to believe that:
- they did not have leave (permission) to enter or remain in the UK.
- their leave had expired.
- they were not allowed to do certain types of work.
- their papers were incorrect or false.
Statutory Excuse if Facing a Civil Penalty For Failing to Check
If an employer has found to have employed an illegal worker but is also able to demonstrate they have carried an appropriate check, then they may be able to demonstrate that they have a ‘Statutory Excuse’ to prevent liability for a civil penalty.
Discrimination Trip Hazard
To avoid discrimination claims, be wary of making presumptions about nationality. It’s advisable to ask everyone to provide evidence of right to work, not just those who you believe are not British Citizens based on skin colour, ethnic origin etc. You also need to consider the language you use when discussing or asking for right to work documentation as this could be deemed discriminatory, for example, during an interview: “I’m assuming you are not a UK citizen, so please can you confirm you have the right to work in the UK?”
Ways to Evidence Right to Work Manually
Obtain the original version of one or more of the acceptable documents (please note the new list of acceptable documents no longer allows EEA citizens to evidence their right to work by presenting their EU passport or national ID card and will have to provide other evidence of their settled status).
Check the documents in the presence of the holder of the documents which can currently be in person or due to the current coronavirus pandemic can be via a live video link until 5th April 2022 (date deferred from the original deadline of 31st August 2021).
Make a clear copy of each document in a format that cannot manually be altered and retain the copy securely: electronically or in hardcopy, recording the date on which the check was made.
Arrange to carry out follow-up right to work checks where relevant (e.g. time-bound visa’s) where the acceptable document only provides limited statutory excuse.
Ways to Evidence Right to Work Online
Note: This is your only option with remote workers after 5th April 2022 unless you ask your remote workers to attend in person on their first day of work for identification and right to work checks.
An online check gives an employer access to up to date, real-time information about an employee’s right to work. Not all employees, or prospective employees, will have an immigration status that can be checked online. This service currently supports checks in respect to those who hold:
- A biometric residence permit.
- A biometric residence card.
- A status issued under the EU Settlement Scheme.
- Status issued under the points-based immigration system.
- British National Overseas (BNO) visa.
- Frontier workers permit.
Ask the applicant and or employee to provide their unique right to work code and date of birth and use this on the ‘View Right to Work’ page on the .GOV website alternatively they may choose to send this to you via the service. If they do you will receive an e-mail from email@example.com
If this confirms the applicant has the right to work, confirm the type of work in question, satisfy yourself that the photograph on the online right to work check is of the individual presenting themselves for work (in person or via live video link).
Retain a clear copy of the response provided by the online checking service for the duration of the individual’s employment and for two years afterwards.
You should give employees/prospective candidates every opportunity to demonstrate their right to work. You should not discriminate based on whether or not an individual is able and/or willing to demonstrate their right to work using the online service. If an individual does not wish to demonstrate their right to work using the online service, you should conduct a manual check.
Are retrospective checks required?
The changes to the right to work checks only apply to checks carried out after the 1st July 2021. Retrospective checks are not required for EEA or Swiss citizens or their family members (excluding Irish Citizens) if their right to work was checked by June 2021. An employer will have a statutory excuse if they carried out appropriate checks before the 1st July.
Consider whether you want to carry out a retrospective right to work check for EEA and Swiss nationals (excluding Irish Citizens) not checked by June 2021 as potentially you could be in breach and would not have a statutory excuse. You can invite – but not require – EEA and Swiss nationals and family members, to provide a right to work code so you can carry out the online right to work check.
Transitional Measures and Statutory Illegality
If you become aware of an EEA or Swiss employee (other than Irish) who was employed before the end of June 2021 but who does not have settled status you must advise the employee to make an application under the settlement scheme within 28 days.
The employee will need to provide you with a certificate of application.
The employer will then need to contact the Home Office Employer Checking Service (ECS) to obtain a Positive Verification Notice (PVN). This provides the employer with the statutory excuse against a potential civil penalty. However please note this is only for 6 months. When the PVN expires the employer must carry out another check.
An employer may be required to take steps to end an employee’s employment if their application for settled or pre-settled status is refused or if the employee fails to make an application within the required 28 days. This would most likely be a dismissal on the basis of Statutory Illegality – one of the five fair reasons for dismissal in the UK – providing you follow the appropriate procedure of course.
These transitional measures, which allow employers to continue to employ an employee while their late application is dealt with, applies until 31 December 2021. This approach is not though applicable to anyone employed after the 1st July 2021.
One final note
You should also use the Employer Checking Service when an individual cannot provide you with any of the documents from List A or List B but claims:
- they have an ongoing immigration application or appeal with the Home Office;
- their documents are with the Home Office; or
- they present other information indicating they are a long-term resident of the UK who arrived in the UK before 1988.
The ECS can confirm from Home Office records that the applicant has lawful status and, if appropriate, will issue a Positive Verification Notice.
We recommend employers update their checklist of the information they use to check an employee’s right to work and inform all recruiting managers of the changes taking place.
We also recommend you check that all your managers and recruiters engaging in interviewing and onboarding new starters both understand and are confident to follow the law.
Check-in with any agencies you use to ensure you are clear whose responsibility it is to check right to work and at what stage that will be done. It will usually be YOURS!
Do not assume that all job applicants understand what is required in relation to Right to Work. Consider adding in information that can be sent out to job applicants so that everyone is clear.
For interest: Current uncertainties for applicants often arise around right to work on a UK contract outside of the UK – many assume this is possible and online interviewing can result in current location not always being disclosed if it is assumed by the employer to be the UK or assumed by the applicant not to be relevant. However, this is a complex area in law and generally, UK employment contracts are not valid for anyone living outside the UK. The right to work issue is therefore often superseded by potential invalidity of the contract.
Here is a little further information from the .gov website on what you are checking, as well as Right to Work, for those new to recruiting!
- 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 have not expired.
- photos are the same across all documents and look like the applicant.
- dates of birth are the same across all documents.
- the applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work).
- for students you see evidence of their study and vacation times.
- if two documents give different names, the applicant has supporting documents showing why they’re different, such as a marriage certificate or divorce decree or.
You can download right to work documentation from our template document site. If you already have membership, these are included free of charge. If you would like more information on pricing contact us or have a look at the Docs Wizard website.
Never simple and ever more complex, but if you would like any training for your managers or e-learning developed by us for your organisation, please do ask. We cover all legal topics including:
- Diversity and inclusion
- Managing performance
- Managing absence
- Grievances and discipline etc.
Live online sessions, face-to-face and e-learning options available. All delivered by our consultants who also support with the day-to-day HR issues being faced by our clients so their approach is practical, pragmatic and knowledgeable.
Soft skills training such as leadership, mental wellbeing, stress, coaching skills for managers and train the virtual trainer also available from Jaluch. Or why not try something a bit different but really valuable for staff: 50 mins for staff on how to relax sore ‘zoom’ eyes, or preventing shoulder or back pain when using laptops.
So much to choose from but what would be really valuable for your staff and managers right at this moment in time?