Do you know the legal responsibilities of right to work checks?

What are the Legal Responsibilities of Right to Work Checks?

People are arriving in the UK on a daily basis to live and work. Sometimes, they are planning to settle and remain indefinitely, building a new life for themselves. In other instances, people are hoping to stay and work for a few years before returning home. Whatever the reason or the circumstance of people arriving in the UK to work, they will all need a Right to Work check. We’ll review the Legal Responsibilities of Right to Work checks and tackle the consequences for employers that fail to comply with the requirements. 

Did you know that all UK citizens must complete a right to work check too?

The Importance of Right to Work Checks in the UK 

Right to Work checks play a pivotal role in ensuring that individuals employed in the UK have the legal authorisation to work. Conducting these checks helps to prevent the exploitation of illegal labour, uphold the principles of fairness and equal opportunity, and contribute to national security. Legally obligated to perform Right to Work checks on all employees to verify their eligibility to work in the country, an employer’s failure to adhere in a timely manner could result in severe consequences, such as fines or criminal prosecution. 

Understanding Right to Work Legislation

Right to Work legislation in the United Kingdom refers to the set of laws and regulations that govern an individual’s eligibility to work in the country. Its primary purpose is twofold: 

• Preventing Illegal Employment: Right to Work checks are conducted to ensure that individuals employed in the UK have the legal authorisation to work. This helps prevent the exploitation of illegal working and maintains the integrity of the job market. 
• Promoting Fairness and Equal Opportunity: Right to Work checks aim to uphold the principles of fairness and equal opportunity in the job market by ensuring that all individuals, regardless of their nationality or immigration status, have a fair chance at employment. 

Compliance with Right to Work legislation is not only a legal requirement but also a moral and ethical obligation for employers to provide a level playing field for all job seekers. 

The Legal Framework around Right to Work – Understanding the Immigration, Asylum, and Nationality Act 2006  

The legal framework for Right to Work checks in the UK is primarily established by the Immigration, Asylum, and Nationality Act 2006 (IANA). Key provisions of the IANA include: 

• Document Verification: The types of documents and methods employers can use to establish the individual Right to Work. 
• Categories of Workers: Distinguishing between different categories of workers, including British citizens, European Economic Area (EEA) nationals, and non-EEA nationals.  
• Legal Requirement: It establishes the legal requirement for employers to conduct Right to Work checks on all potential employees in order to verify their eligibility to work in the UK. 
• Penalties: The Act sets out penalties for employers who knowingly or negligently employ individuals without the right to work.  

What are the different categories of workers?  

• British Citizens: British citizens have an unrestricted right to work in the UK. Employers do not need to conduct additional checks beyond verifying their identity. 
• EEA Nationals: Citizens of countries within the European Economic Area (EEA) and Switzerland citizens can no longer work in in UK on the basis of their passport alone. They now need a permit too. The UK Government website states: “An EU passport or national identity card alone is no longer valid proof of someone’s right to work in the UK. However, Irish citizens can continue to use their passport or passport card to prove their right to work” 
• Non-EEA Nationals: Non-EEA nationals may have varying rights to work in the UK depending on their immigration status. This category includes individuals with work visas, dependents, and asylum seekers. Employers must conduct thorough Right to Work checks for non-EEA nationals, including verifying their visa or immigration status. 

Legal Responsibilities of Right to Work Checks

The legal responsibilities employers have under Right to Work legislation. 

Employers in the UK have clear legal responsibilities under Right to Work legislation, including: 

• Conducting Checks: Employers must conduct Right to Work checks on all potential employees before they commence employment. These checks are essential to verify an individual’s eligibility to work in the UK. 
• Non-Discrimination: Employers must treat all job applicants fairly and equally, regardless of their nationality or immigration status. Discrimination based on these factors is illegal. 
• Document Verification: Employers are responsible for verifying the authenticity and validity of the documents provided by job applicants during Right to Work checks. This includes checking for forgeries, expiration dates, and any relevant endorsements. 

• Record Keeping: Employers must maintain clear and dated records of all Right to Work checks conducted. These records should be securely stored and easily accessible for auditing purposes. 

Conducting Checks – The process of conducting Right to Work checks for job applicants and employees

The process of conducting Right to Work checks involves several key steps: 

• Collect Documentation: Ask that the job applicant or employee provides original, unexpired documents that establish their Right to Work. 
• Examine Documents: Carefully inspect the documents to ensure they are genuine and belong to the person presenting them. Look for features such as holograms, and biometric information. 
• Check Visa Expiry Dates: If the individual holds a visa, check the expiry date to determine if they are eligible to work for the entire duration of their employment. 
• Record the Check: Document the date of the check, the type of documents examined, and any additional notes or actions taken as a result of the check. This record is crucial for compliance. 
• Notify the Applicant/Employee: Inform the individual of the outcome of the check. If the check is successful, confirm their eligibility to work. If there are issues or follow-up actions needed, communicate them clearly. 
• Retain Copies: Keep clear, dated copies of the documents securely. Make sure these copies are easily accessible for auditing purposes. 

Ongoing Checks for employees with time-limited visas 

For employees with time-limited visas, employers have a responsibility to conduct follow-up checks to verify their continued eligibility to work. This is particularly crucial because visa statuses can change over time. Employers should: 

• Set reminders to conduct follow-up checks as visa expiration dates approach. 
• Ensure that employees with time-limited visas are aware of the need to inform the employer of any changes in their immigration status. 
• Document and retain records of these follow-up checks. 

Fair and non-discriminatory practices in the recruitment process 

It is essential for employers to maintain fairness and equality in the recruitment process. This includes: 

• Not making hiring decisions based on an individual’s nationality or immigration status. 
• Treating all job applicants equally and giving them the same opportunity to prove their eligibility to work. 
• Avoiding any form of discrimination in the recruitment process, which is not only illegal but also undermines the principles of fairness and equality. 

By adhering to these responsibilities and principles, employers can create a workplace that is both legally compliant and ethically sound. 

Compliance with these Right to Work Checks is not only a legal responsibility, but a fundamental part of fair, ethical employment practices. By understanding these requirements, employers can contribute to a lawful and inclusive workforce, safeguard their businesses from legal penalties, and uphold the principles of fairness and equal opportunity in the job market. Employers must also seek professional assistance when facing complex Right to Work issues to ensure compliance and maintain the highest ethical standards in their employment practices.