Right To Work Checks
Date Published: 26 September 2017
The Home Office have published amended guidance for employers conducting right to work checks.
Here are some of the highlights:
- The guidance now states that employers should check the right to work documents of contractors they have working for them and they might wish to check the right to work documents of those who are self employed. Note though that this requirement is currently not mandatory and it is not clear from the guidance what penalty, if any, there would be if you fail to carry out these checks.
- The guidance stresses the importance that employers carry out another right to work check of the biometric residence permit when an employee presents a 30-day vignette.
- The guidance helpfully clarifies that direct non-EEA family members of EEA nationals might have the right to work in the UK, without holding documentation on List A or B. The guidance suggests documentation that the employer can request to verify a non-EEA family member's right to work, including ID for the non-EEA national, evidence of their relationship with the EEA national and evidence of the EEA national exercising treaty rights in the UK. However the guidance warns that an employer does not establish a statutory defence to civil penalty if they do not have the required List A or B documents.
- The guidance clarifies that although volunteering is generally allowed where someone has immigration permission, voluntary work is not. If the relevant organisation has an obligation to provide work to the individual and or the individual is remunerated, e.g. through benefits in kind, the activity is likely to be categorised as voluntary work. If in doubt please contact us!
The Immigration and Asylum Act
Under the provisions of the Immigration and Asylum Act it is a criminal offence to employ someone who is 16 or over and not entitled to work in the UK. While some overseas nationals are automatically entitled to work in the UK, others require a work permit. If you hire an overseas worker who does not have permission to work in the UK you could face a fine of up to £5,000 per offence.
What to Check
All potential employees must be asked to provide documentation, before starting employment, that proves they are eligible to work in the UK.
There are two lists of documents which can be used. I have added a link at the end of this article for you to download a Factsheet with the two lists of documents which you can give to potential employees.
It is not acceptable simply take a copy of the documents presented. You must also check that the potential employee is the rightful holder of the documents presented. This can be achieved by checking that:-
- The photograph is actually of the individual
- The date of birth is consistent with the applicants appearance
- The information contained within the document corresponds with that contained within the application
- The expiry date has not passed
- Any UK Government stamps or endorsements permit the individual to perform the type of work on offer
- If the two documents in List 2 bear different name, a further document is produced that explains the discrepancy
When to Check
You must ensure that you have sufficient evidence to support your right of defence if the Immigration Office finds that an illegal immigrant has been engaged. Therefore all checks must be carried out prior to an individual starting employment. It is up to the individual to prove that they are eligible to work in the UK – if you are not satisfied with the documents presented do not employ the individual until such time that they can provide satisfactory documents.
You can ask applicants to provide proof of entitlement to work in the UK at any stage before they start work.
So you can do it at the interview stage, but if you are filling a number of positions then that a lot of unnecessary checking. If it is more convenient you are perfectly entitled to ask only the person chosen to fill the vacancy to provide their documentation.
Avoid Discrimination Claims
If you choose to request documents at an earlier stage of the recruitment process, such as at the first or second interview stage, make sure that you ask all applicants who reach that stage so you do not risk being accused of race discrimination. If you asked a black job applicant to produce appropriate documents but not a white applicant you would be discriminating against the black applicant on the grounds of his race. Remember, there is no upper limit to compensation awards for racial discrimination.
If an applicant's documents are incomplete it is perfectly acceptable to continue with the selection process as planned. Simply ensure that if you offer that applicant the job you have checked the correct documents before they start work. I would suggest giving them a deadline to provide the documents and make it clear if they do not comply you will offer the position to another applicant.
Home Office Right to Work Checklist
The Code of Practice on Preventing Illegal Working requires employers to verify entitlement to work in the UK by asking for appropriate documentary proof from new employees.
The Conditional Offer Letter includes a paragraph which requires the employee to provide evidence of their legal right to work in the UK, and asks the new employee to bring in ID and their P45 on their first day of employment.
To download the Home Office Right to Work Checklist complete your details below and I will send you an email containing the document: