There are significant changes ahead regarding the right to work check procedure that employers must follow:
- Covid-19 concessions to right to work checks will no longer apply from 20 June 2021.
- The grace period for EU nationals working in the UK is coming to an end on 30 June 2021.
We explain below how to conduct right to work checks in line with current guidelines and outline the implications for the future.
Obligation to conduct right to work checks
All employers are under a legal obligation to conduct right to work checks for their employees to prevent illegal working.
A right to work check must be carried out for every employee before they start working for you, and subsequent checks will be required for employees with temporary permission to work in the UK.
Failure to carry out prescribed right to work checks for employees can result in both a civil penalty and criminal sanction:
Civil penalty
If you employ individuals who lack the right to work in the UK, you could face a civil penalty of up to £20,000 per illegal worker.
This is a significant cost, and it also impacts your ability to retain or apply for a sponsorship licence, which may prevent you from engaging foreign workers in the future.
However, there is a ‘statutory excuse’ which relieves you from liability if you carried out a compliant right to work check following Home Office guidance.
Criminal sanction
It is also a criminal offence to employ an illegal worker who you know or have reasonable cause to believe does not have the right to work in the UK.
There is no statutory excuse for this offence, so even if you conducted a right to work check, you will be liable for an unlimited fine or a prison sentence of up to five years.
When should right to work checks be carried out?
You must conduct a right to work check for every worker and employee you take on, but you are not under an obligation to check self-employed individuals you engage.
The line between employed staff and self-employed contractors can often be blurred; therefore when contracting out work, it is advisable to check that the contractors are carrying out checks for their workers.
There is a legal requirement to conduct a right to work check before the employee starts working for you.
If the employee’s right to work in the UK is temporary, for example, a time-limited visa, you must conduct a repeat check before the expiry date.
Therefore, we advise making a note of the expiry date and set yourself reminders so that you have plenty of time to check that the individual’s right to work is being extended.
It is essential that you carry out the right to work checks yourself as the employer, otherwise, you will not benefit from the statutory excuse to a civil penalty mentioned above.
How to conduct a right to work check
There are two ways to conduct a right to work check – a manual process and an online process.
Both involve checking the individual’s documentation.
Acceptable documents
The Home Office sets out the acceptable documents that can be provided for a right to work check in its Right to Work Checklist.
The types of document are split into ‘List A’ and ‘List B’.
List A documents show that the individual has the permanent right to work in the UK, so they provide an employer with a statutory excuse against illegal working offences for the entirety of the individual’s employment.
Such documents include:
- UK Passport;
- EU Passport or Identity Card;
- Biometric Residence Permit (BRP) indicating indefinite permission to stay in the UK.
List B documents grant the individual limited right to work in the UK so they only provide an employer with a temporary statutory excuse which will end once the visa expires.
List B is further divided into Group 1 and Group 2:
- Group 1 – you will need to carry out a follow-up right to work check before the expiry date of the document provided.
- Group 2 – you must also contact the Employer Checking Service
Manual check
If you choose to conduct a manual right to work check, this consists of 3 steps:
Obtain the document – obtain an original document from the employee which falls under one of the categories of List A or List B approved documents.
Check the document – check that the identity on the document matches the employee and check whether there is an expiry date you need to be aware of. You should also check that the document is genuine and inspect it for signs of falsification.
Copy the document – you must make a clear copy of the document (this can be in a paper or online format) and note down the date that the check was conducted. These records should be kept for the entirety of the individual’s employment and a further two years.
Online check
Alternatively, you can conduct an online right to work check through the gov.uk website.
This is a rather new system, so it will not work for every situation, but the online check supports the most common types of approved documents.
The employee is provided with a right to work record from gov.uk along with a share code, which enables you to view their right to work profile.
The share code lasts for 30 days, and you must access the individual’s profile through the employer section of the service, or the check will not work properly.
The individual’s right to work status will contain a photograph which you must match against the employee.
You must then make a copy of the online status which can be kept as a record of the right to work check for the duration of the individual’s employment.
Employer Checking Service
As mentioned above, there is a requirement to contact the Employer Checking Service if the individual provides you with a List B Group 2 document.
This is because these documents show that the individual has an outstanding application with the Home Office but not their actual immigration status.
The Employer Checking Service should respond within 5 days and provide you with either a:
- Positive verification notice – the individual is permitted to work for you, and this gives you a statutory excuse for 6 months, after which a follow-up check should be conducted.
- Negative verification notice – the individual does not have the right to work in the UK.
Covid-19 concessions
From March 2020, the Home Office introduced Covid-19 related concessions to the right to work check process:
Right to work checks can be conducted via video call rather than in person.
Documents can be sent as scanned documents or photographs rather than sending the original.
This temporary adjustment to right to work checks will end on 20 June 2021, from which point employers must revert to the original Home Office guidance requiring face to face physical checks.
However, employers will not be required to conduct retrospective checks on employees who underwent a Covid-adjusted right to work check.
As adjusted right to work checks have been carried out for over a year now, it would not be feasible for retrospective checks to be conducted, especially given the difficulties businesses have faced during this time.
Right to work checks for EU nationals
Before explaining the right to work checks that should be conducted for EU nationals, we will briefly summarise the immigration background between the UK and the EU.
Freedom of movement between the EU and the UK continued as normal during the transition period which ended on 31 December 2020.
From 1 January 2021, new immigration controls now apply to EU citizens looking to live and work in the UK.
EU nationals residing in the UK before or on 31 December 2020 can apply under the EU settlement scheme for pre-settled or settled status to enable them to remain in the UK.
Applications must be made by 30 June 2021, and the period from 1 January 2021 leading up to this deadline is known as the ‘grace period’.
Current guidance on right to work checks up until 30 June 2021
The current Home Office guidance on right to work checks will continue to apply until the end of the grace period on 30 June 2021.
Therefore, right to work checks should be conducted in the ordinary way through checking an EU national’s passport or ID card.
These documents still provide an individual with the right to work in the UK, regardless of whether they have applied under the EU Settlement Scheme.
This inevitably causes issues because an EU national’s passport or ID card will not show whether they were resident in the UK before the transition period ended and therefore whether they are eligible to obtain permission to work in the UK under the EU Settlement Scheme.
You can, of course, encourage individuals who have already obtained pre-settled or settled status under the EU Settlement Scheme to provide you with evidence of their status.
However, you should not require them to do so against their wishes as this could amount to race discrimination, since Home Office guidance states an EU passport or ID card is still sufficient evidence of the right to work in the UK.
The Home Office has reassured employers that if it later transpires an employee does not have the right to work based on their EU passport or ID card, but the prescribed right to work check was conducted prior to their employment, the employer will not face civil or criminal liability for illegal working.
Right to work checks from 1 July 2021
We are awaiting guidance from the Home Office on how right to work checks will change from 1 July 2021.
However, the Home Office has already made it clear that employers will not be obliged to conduct retrospective checks on EU nationals employed during the grace period to identify their status under the EU Settlement Scheme.
Employers can choose to carry out retrospective checks, but this must be done in a non-discriminatory way.
This is rather problematic as it seems that the only way to avoid discrimination claims in this situation would be to conduct right to work checks across the entire workforce.
Summary
- Right to work checks can be conducted manually or online – you must obtain an approved document, check that the document is authentic and keep a copy of the document on file.
- Covid-19 concessions will no longer apply from 20 June 2021, so thereafter right to work checks will need to be conducted in person using the original document.
- Right to work checks for EU citizens should continue in the ordinary way through checking their passport or ID Card until 30 June 2021.
- Home Office guidance will be released advising employers on how to conduct right to work checks for EU nationals from 1 July 2021 onwards.
