Right to work checks and what UK employers need to know
Released On 17th Nov 2022
Employers in the UK have a legal obligation to conduct basic checks on every UK based employee to verify if they have the required permission to work here. The checks must be carried out indiscriminately on all potential employees, regardless of their nationality, race, or ethnicity.
During the Covid 19 pandemic, employers were given a hiatus from in person right to work checks and could conduct checks via videos and by using copied rather than original documents.
Now this flexible way of conducting right to work checks has come to an end on October 1st, 2022.
So, what do employers need to know?
What are right to work checks?
Right to work checks involve the process of UK employers verifying an individual’s eligibility to legally work within the UK, on both a full time and temporary basis. These checks also involve a review of the type of work to be undertaken by the proposed individual, to ensure that both aspects of the checks are fully compliant with Home Office regulations.
Are right to work checks mandatory?
Yes! employers are required by law to conduct detailed checks and to formally record their findings. In the event of any alleged breach, employers may be able to rely upon a statutory defence if they are able to demonstrate consistent and compliant measures were undertaken during the hiring of individuals, who require permission to work in the UK.
Are there any necessary steps that must be taken by employers to ensure a right to work check is compliant?
In total there are three steps to be undertaken to ensure that a right to work check is compliant
Step 1 – to obtain all relevant documentation
Step 2 – to check all documentation is valid and compliant
Step 3 – to retain copies of all submitted items and completed checks
Is there a specific way in which right to work checks must be conducted?
From 1 October 2022, all UK employers will have to conduct their employee right to work checks manually, in person or through compliant Home Office processes via the online Identity Service Provider [IDSP]. All checks must be carried out indiscriminately on all potential applicants, regardless of race, ethnicity, or nationality.
Are there any additional services that employers can use to carry out compliant right to work checks?
In circumstances where potential employees are unable to provide acceptable documentation at the time of manual documentation checking, which is a common occurrence during periods where Applicants are awaiting Home Office decisions on pending applications, reviews or appeals. Then in such situations there is a free, online Employer Checking Service [ECS] that is available to all employers. This service allows employers to carry out almost instantaneous immigration status checks that allow employers to fulfil their duty to conduct right to work checks.
Are there any penalties for non-compliant employers?
Failure to perform right to work checks correctly can result in serious enforced ramifications, including -
- Criminal Prosecution [of up to 5 years on average]
- Civil penalty fines of up to £20,000 per breach
- Sponsor Licence suspension / revocation
- Enforced debt action
- County Court judgement
- Closure of business
How can we help?
Right to work checks are a mandatory, legal requirement. If an employer fails to carry out their checks correctly, they will find themselves at significant risk of facing one of the above stated penalties. It is therefore always advisable for employers to seek bespoke specialist immigration advice at each stage of the employment process, especially as not all world nationalities are governed by the same set of checks and numerous visa routes require a varying degree of information to be submitted in support.
Whilst employers are not expected to show an expert level of fraud detection, there are however certain expectations on employers to perform their legislative duty under the prevention of the illegal working regime and Battens Immigration Specialists are here to help. If you are an employer who has a question regarding any aspect of the right to work checks or how to avoid or contend Home Office penalties, then please do not hesitate to get in touch.
