Conducting employee right to work checks

How to avoid a £20,000 fine for employing illegal workers

Employers have a legal duty to prevent illegal working in the UK and avoid unlawful discrimination while doing so. The implications of not checking employees’ right to work can not only be costly and damaging to an organisation’s professional reputation but may also disqualify the business from entering into public procurement contracts.

It is an employer’s responsibility to check that a potential employee has permission to work in the UK. If an employer recruits someone, or continues to employ someone, who fails to provide the requisite documents as evidence of their right to work here, the business may be liable for a civil penalty of up to £20,000. Employers should always give potential employees an opportunity to demonstrate they have the right to work, and keep the job offer open while they do so. However, if the company needs to recruit urgently, it is not obliged to keep the time frame for doing this open ended.

The offence of employing an illegal worker

With effect from 12 July 2016, under section 21 of the 2006 Act (as amended by section 35 of the Immigration Act 2016), an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. This means that an employer can no longer evade prosecution where the investigating agency cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work. The maximum sentence on indictment for this offence has been increased from 2 to 5 years.

What is a right to work check?

A right to work check means that you check a document which is acceptable for showing permission to work. You must do this before you employ a person to ensure they are legally allowed to do the work in question for you. You are also required to conduct a follow-up check on people who have time-limited permission to work in the UK.

Checking a person’s documents to determine if they have the right to carry out the type of work you are offering comprises three key steps:

1. Obtain the person’s original documents;
2. Check them in the presence of the holder; and
3. Make and retain a clear copy, and make a record of the date of the check.

You are responsible for conducting the visual inspection of the documents presented to you.

Who do you conduct checks on?

You should conduct right to work checks on all potential employees. This means you should ask all people you are considering employing to provide you with their (original) documents. To ensure that you do not discriminate against anyone, you should treat all job applicants in the same way at each stage of your recruitment processes.

You should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK.

You will also place yourself at risk of liability for a civil penalty if you do not carry out a check on someone you have assumed has the right to work for you, but is found to be an illegal worker.

How do you conduct checks?

There are three basic steps to conducting a right to work check. Remember three keywords:

1. Obtain original versions of one or more acceptable documents.

   A list can be found here

2. Check the document’s validity in the presence of the holder.

   You must check that they are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering. You must check:

   • Photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
   • Expiry dates for permission to be in the UK have not passed;
   • Any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
   • The documents are genuine, have not been tampered with and belong to the holder; and
   • The reasons for any difference in names across documents (e.g. original marriage certificate, divorce decree absolute, deed poll). These supporting documents should also be photocopied and a copy retained.

3. Copy - Make and retain a clear copy, and record the date the check was made.

   You must make a clear black and white copy of each document in a format which cannot later be altered, and retain the copy securely: electronically or in hardcopy. You must also retain a secure record of the date on which you made the check.

   You must copy and retain:

   • Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question (the front cover no longer has to be copied).
   • All other documents: the document in full, including both sides of a Biometric Residence Permit and a Residence Card (biometric format). You must retain copies securely for not less than two years after the employment has come to an end.

When do you conduct checks?

You are required to carry out an initial right to work check on all people you intend to employ before you employ them. Once you have completed this check, you will be required to carry out follow-up right to work checks on this person if they have time-limited permission to be in the UK and to do the work in question.

If a person provides you with acceptable documents from List A there is no restriction on their right to work in the UK, so you establish a continuous statutory excuse for the duration of the person’s employment with you. You are not required to carry out any further checks on this person.

If a person provides you with acceptable documents from List B there are restrictions on their right to work in the UK, so you will establish a time-limited statutory excuse.

You are required to carry out follow-up checks on this person.

Further Information:

If you have a question or would like advice on anything mentioned in this fact sheet please contact our HR Services team on 01865 292260 or send an email to hr@shawgibbs.com