Given that immigration is currently a hot topic in the general election debate for all political parties, it is useful to provide a reminder on the all-important employer’s right to work checks, particularly due to the potential penalties for getting this wrong.
A right to work check should be carried out before employment commences to ensure that the employee is allowed to do the work in question. If carried out correctly, an employer will have a statutory excuse against a civil penalty. An employer can carry out a right to work check in one of two ways; either an online check or a manual check.
Conducting an online check
From 28 February 2019, an employer can now check their employee’s right to work using the online right to work checking service. This service is designed to eliminate the need to inspect and retain physical documents, and instead provide employers with up-to-date information about an employee’s right to work, effectively streamlining the process to carry out the check.
The service is not available for all employees and currently supports individuals with a biometric residence permit, a biometric residence card, or status issued under the EU Settlement Scheme.
In order to establish the statutory excuse by obtaining an online right to work check, the employer must:
- carry out a check using the Home Office online right to work checking service;
- obtain a check confirming that the relevant employee is allowed to work in the UK and is allowed to do the work in question;
- be satisfied that any photograph on the online right to work check is of the employee; and
- retain a clear copy of the online right to work check for not less than two years after employment has ended.
If the online check is positive and confirms an employee’s right to work, it provides the employer with a statutory excuse for the period for which that check is valid.
Conducting a manual check
In the event that an online check is not possible, a manual check should be carried out. This includes the following three steps:
- Step 1: Obtain from the person being checked a single document or a combination of documents as specified in the Immigration (Restrictions on Employment) Order 2007 (the Restrictions on Employment Order), SI 2007/3290, List A or List B (part 1 or 2).
- Step 2: Check that the features of the document meet the requirements set out in List A or List B, making an assessment of any immigration conditions on the document. Check to ensure the document belongs to the person in question and ensure that the document is not a forgery. Be mindful of any differences in the names of the person and obtain further evidence if required i.e. marriage certificate or deed poll.
- Step 3: Take and retain a clear, permanent copy of the document, ensuring that all specified pages of the document are copied, make a record which confirms the date of the check and diarise the date that a repeat check is due, if applicable.
The Home Office provides a checklist as to the steps that should be taken when making a right to work check. The checklist is designed to be completed for each person checked and will, when completed, provide a record that the employer has taken all of the required steps when conducting the check. This checklist should be used because the statutory excuse is only available if the employer shows they have complied with the requirements.
There will be no change to the right to work of EU, EEA and Swiss nationals and their family members living in the UK until 31 December 2020 even if the UK leaves the EU without a deal. You will need to check a job applicant’s right to work in the same ways as you do now until 1 January 2021. EU nationals will be able to prove their right to work using either:
- their passport or national identity card if they’re an EU, EEA or Swiss national;
- their biometric residence card if they’re a non-EU, EEA or Swiss national family member;
- their status under the EU Settlement Scheme of EU Temporary Leave Scheme using the Home Office’s online right to work checking service.
There is a duty not to discriminate against EU, EEA or Swiss nationals. You cannot require them to show you their status under the EU Settlement Scheme or European Temporary Leave to Remain until 1 January 2021. Irish nationals will continue to prove their right to work in the UK as they do now.