Process of Performing Right to Work Checks
Ensuring the legitimacy of an employee’s right to work is a crucial responsibility for any business. This article will guide you through the process of performing Right to Work checks, a legal obligation for employers selling goods or services. Understanding these checks, their legal framework, and the procedures involved can help businesses avoid penalties and maintain a compliant workforce. Whether you’re a seasoned HR professional or a small business owner, this comprehensive guide will provide you with the necessary knowledge to conduct these checks effectively and efficiently.
Understanding Right to Work Checks
Right to Work checks are an essential part of the employment process in the UK, yet they often don’t receive the attention they deserve. These checks act as a protective measure for businesses, ensuring that they are hiring individuals who are legally authorised to work within the country. But what exactly do these checks involve? How are they carried out? And what are the potential repercussions if businesses neglect to comply with this legal requirement? This article aims to demystify Right to Work checks, exploring their definition, the legal framework surrounding them, the procedures involved, best practices for document management, and the consequences of non-compliance.
Definition of Right to Work Checks
In the UK, Right to Work checks refer to the procedures employers must follow to verify that potential or current employees have the legal right to work in the country. This process includes determining their immigration status and confirming that there are no restrictions on the type of work they can perform or the number of hours they can work.
Far from being discriminatory, these checks are mandatory steps that every employer must take to comply with immigration laws and maintain the integrity of their recruitment process. The checks apply to all workers, including British citizens, to ensure uniform compliance and prevent unlawful discrimination.
Employers should conduct these checks prior to hiring new employees and at regular intervals for those with limited work permission. Businesses that neglect to carry out Right to Work checks risk facing hefty fines and significant reputational damage, a topic we will delve into later in this article.
Legal Framework for Right to Work Checks
The mandate for businesses to perform Right to Work checks stems from the Immigration, Asylum and Nationality Act 2006. This legislation places a responsibility on employers to deter illegal employment by executing necessary checks.
Section 15 of this Act stipulates that employers can face fines if they knowingly employ someone without the right to work in the UK, a violation often referred to as a ‘civil penalty’. The financial penalty can reach up to £20,000 per illegally employed individual.
However, employers can defend themselves by demonstrating they’ve conducted thorough checks as specified in the Home Office’s ‘Right to Work checks: An Employer’s Guide.’ This manual provides a list of acceptable documents for checks and instructions on how to perform these checks correctly.
Furthermore, persistent non-compliance or deliberate employment of illegal workers can lead to criminal prosecution, unlimited fines, and a prison sentence of up to 5 years under the Immigration Act 2016.
Additionally, the Equality Act 2010 requires employers to apply these checks uniformly to prevent discrimination based on nationality or race. Consequently, all potential employees should undergo these checks, irrespective of their apparent nationality, ensuring fairness and legal compliance across the organisation.
Process of Performing Right to Work Checks
The execution of a Right to Work check follows a three-tiered process: acquisition of the applicant’s original documents, verification of these documents in the presence of the holder, and creation and retention of a clear copy of the document.
Prior to initiating these steps, employers need to familiarise themselves with the acceptable documents that validate a person’s right to work in the UK, as outlined in the Home Office’s document lists.
The procedure may vary if the prospective employee or current worker has a restriction on their stay or falls under the EU Settlement Scheme, instead of providing traditional physical documents. Further details about these scenarios will be explored in the subsequent sections.
Initial Document Verification
Embarking on a Right to Work check begins with the crucial step of initial document verification. As an employer, it’s your responsibility to secure original versions of one or more acceptable documents. The Home Office categorises these into two distinct lists: List A and List B.
List A comprises documents such as a passport indicating the holder’s status as a British citizen or a citizen of the UK and Colonies with the right of abode in the UK. When an individual presents a document from List A, it signifies their permanent right to work in the UK.
Conversely, List B encompasses documents for those with a temporary right to work in the UK. This might include a passport or other travel document endorsed to show that the holder is permitted to stay in the UK and engage in the type of work in question.
As an employer, you must verify the authenticity of these documents in the holder’s presence. This involves a careful examination of the document for signs of tampering, confirming the photograph aligns with the holder’s appearance, and verifying that the date of birth listed is plausible.
In cases where documents bear a different name, additional documents such as a marriage certificate or divorce decree should be provided to explain the discrepancy. Only after these checks have been satisfactorily completed should an employer move forward to the next phase of the Right to Work check.
Additional Checks and Outcomes
When an individual presents documents from List B, additional verification steps are necessary. Given these individuals possess a limited right to work in the UK, follow-up checks are required. Typically, this involves reiterating the initial document verification process either just prior to their permission to stay or work in the UK expires, or every six months for those holding a Certificate of Application or Application Registration Card.
Considering the COVID-19 pandemic in 2021 and the subsequent shift to remote work, the Home Office adjusted its rules. It allowed checks to be conducted via video calls and accepted scanned or photocopied documents in lieu of original versions. However, employers are expected to conduct retrospective checks within eight weeks of the COVID-19 measures ending.
In certain circumstances, when a potential employee is unable to provide the necessary documents, employers can request a Home Office Right to Work Check. This process involves completing an online form on the Home Office section of the gov.uk website. If the individual has permission to work, the employer will receive a ‘positive verification notice’.
In summary, meticulous execution of these checks is vital for an employer to remain compliant with UK immigration rules. Establishing a follow-up process for workers with temporary rights and staying updated on changes, such as those brought about by COVID-19, are integral components of successfully managing right to work checks.
Documentation and Retention of Evidence
Ensuring compliance with immigration and employment laws in the UK involves more than just performing Right to Work checks. It also entails the meticulous documentation and secure retention of evidence derived from these checks. This section will delve into the specifics of what evidence should be kept, the correct way to record it, and the duration for which it should be stored.
Recording and Storing Evidence
After an employer has verified an employee’s documentation, the next step is to create a clear copy of each document. For passports and similar documents, this includes the photo page and any pages with endorsements, such as work restrictions or expiry dates. All other documents should be copied in their entirety.
These copies should be stored securely, either in physical form or electronically. It’s also advisable to keep a record of the date when the check was performed. This serves as proof that the necessary checks were carried out, should the Home Office ever request this information.
The Home Office recommends keeping these document copies and the record of the check date for the entire duration of the employee’s tenure, and for an additional two years after their departure. This practice provides a statutory excuse against a civil penalty in case the Home Office discovers that the employer has hired someone illegally.
However, the privacy of the individual whose records are being stored must also be considered. The handling and storage of personal data must be in accordance with UK data protection legislation. Consequently, employers must have a valid reason for storing this information and must take the necessary precautions to prevent accidental loss, damage, or unauthorised access.
Implications of Non-Compliance
Non-compliance with Right to Work check regulations can lead to substantial repercussions, making it a critical aspect of any business operation. It’s not just about understanding the importance of these checks, but also about fostering a culture of compliance within the organisation. The potential penalties for employers and the ramifications for employees, which will be elaborated upon in the following sections, underscore the gravity of non-compliance.
Penalties for Employers
Employers who neglect to perform Right to Work checks properly or knowingly employ an individual without the right to work could face substantial penalties. These penalties can range from a civil fine of up to £20,000 for each illegal worker to criminal charges, which could result in an unlimited fine and up to five years of imprisonment.
However, these penalties can be lessened if the employer can prove that they took reasonable measures to avoid employing an illegal worker. This includes conducting thorough Right to Work checks and maintaining precise records.
Persistent non-compliance could escalate to the issuance of a compliance order, mandating the employer to take specific measures to prevent further violations. In extreme cases, businesses may be temporarily or permanently shut down until they can demonstrate their ability to comply with the law to the Home Office.
Moreover, the reputational damage from non-compliance can be significant. Employers found guilty of employing illegal workers may be publicly named by Immigration Enforcement, which could severely tarnish the company’s brand and reputation.
Consequences for Employees
Employees who fail to present valid Right to Work documentation may face significant repercussions. Typically, the absence of necessary paperwork confirming their eligibility to work in the UK can result in a job offer being rescinded.
If an individual is discovered to be working unlawfully, they could be subject to criminal prosecution. This might result in a monetary penalty, a prison sentence of up to six months, or deportation if the individual is a non-citizen.
In instances where the authenticity of the provided documents is questionable, employers are legally required to report this to the Home Office. This could potentially trigger additional criminal charges and penalties. However, employers should tread carefully to avoid premature judgments that could inadvertently lead to allegations of discrimination.
Moreover, those working illegally are not entitled to employment rights and protections, which puts them in a vulnerable position. They are at a higher risk of exploitation, including receiving wages below the minimum wage, working excessive hours, or even becoming victims of modern slavery.
Therefore, it is crucial for employees to secure the necessary permissions for employment in the UK and furnish potential employers with valid documentation confirming their right to work. This not only ensures their legal standing but also protects them from potential exploitation.
- What is the initial step in Right to Work checks?
The first step in a Right to Work check involves obtaining the worker’s original documents as proof of their right to work in the country.
- When to conduct Right to Work checks?
Right to Work checks should be conducted before employing an individual, ensuring that potential employees have the legal status to work.
- What are the acceptable documents for Right to Work checks?
The acceptable documents for the Right to Work checks can include passports, residential permits, or birth certificates, among others.
- How to deal with the uncertainty of a document’s validity during the checks?
In cases of uncertainty regarding a document’s validity, employers should seek advice from the government’s immigration office or employ document verification services.
- What if the potential employee cannot provide the acceptable documents?
If a potential employee cannot provide the acceptable documents, employers should not hire these individuals until they can provide the necessary proof of their right to work.
- Is it necessary to keep a record of the check?
Yes, employers should keep a record of Right to Work checks. The record includes a copy of the documents, the date of the check, and sign off by the person who conducted the check.
