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November 12th, 2020 | Sterling

Right to Work Checks: Are You Sure You’re Compliant?

In the UK, all employers are required by law to check to see if their employees have the right to work in the UK. Failure to correctly ensure your employees have the right to work in the UK can lead to heavy penalties and fines. Steve Smith, Managing Director, EMEA, along with a number of other Sterling leaders, recently presented a webinar, “Background Checks and the Practical Steps to a Frictionless Hiring Programme” to walk through the considerations a company can bear in mind to help establish a seamless hiring process. The session featured Sterling’s newly introduced UK Right to Work ID Verification solution, which can help organisations to deter identity fraud, remain compliant, and deliver a greater candidate experience along the way.

What Are an Employer’s Obligations Regarding Right to Work Checks?

Certain people are automatically entitled to work in the UK while others may have restrictions around their eligibility to work, how long they can work in the UK, and what type of work they can do. Under UK law, the employer plays a role in preventing illegal working by undertaking simple checks on employees’ eligibility or right to work in the UK. The Right to Work check is required to be completed before employment. If an employee has time-limited permission to work in the UK, follow-up checks will be required.

The UK Home Office has set specific rules for Right to Work checks that an organisation must follow before employing an applicant. The rules include a useful summary of a manual Right to Work check which states that a company must:

  • Obtain the applicant’s original documents
  • Check that the documents are valid with the applicant present
  • Make and keep a clear copy of the documents and record the date the check was made

Which Documents are Acceptable and What Must Be Checked?

When checking the documents, a company must thoroughly examine the acceptable documents on two different lists: List A and List B. The Home Office also lists the following requirements when inspecting the documents in person:

  • The documents need to be genuine, original, and unchanged and belong to the individual who has provided the documents
  • The dates for the applicant’s right to work in the UK haven’t expired
  • Photos are the same across all documents and look like the applicant
  • Dates of birth are the same across all documents
  • The applicant has permission to do the type of work the company is offering (including any limitations on the number of hours they can work).

The Home Office’s “Right to Work checks: An Employer’s Guide” provides information about the documents which are acceptable for companies to check and establish someone’s right to work. List A contains documents which a business can accept for a person who has permanent right to work in the UK. If the Right to Work check is done correctly before employment begins, they will establish a continuous statutory excuse for the duration of that person’s employment with no further checks needing to be conducted. List B contains documents which may be accepted for a person who has a temporary right to work in the UK. Companies will be required to conduct a follow-up check to retain the statutory excuse. Sterling’s UK Right to Work ID Verification not only helps you remain compliant but also simplifies the process for the candidate through a guided journey, detailing the documents that are required for the checks.

How to Take Copies of a Candidate’s Documents

By following a three-step Right to Work check process before an applicant gets hired, a company will have a statutory excuse against liability for a civil penalty. Companies can obtain a statutory excuse by simply checking their employee’s documents that demonstrate they can work in the UK.

The three steps to follow are:

  • Obtain the person’s original documents
  • Check the validity of the documents in the presence of the holder
  • Make and retain a clear copy and record the date of the check

While Sterling’s UK Right to Work service helps to verify document authenticity, providing greater hiring confidence, employers are still required to check an applicant’s documentation on or prior to day one. Due to COVID-19 this is currently permitted via video call and through email, reverting to the original checking procedures upon further Home Office instruction. It’s important to note that employers need to make a complete copy of the documents provided by the applicant. Employers should copy any passport page with the expiration date and applicant’s nationality, date of birth, photo, and work endorsements. Biometric residence permits and residence cards should be copied on both sides. The copies of the Right to Work documents need to be kept on file and stored for two years after the employee has stopped working for the business.

What If a Candidate Cannot Show Their Documents?

If the job applicant can’t show Right to Work documents, a company must ask the Home Office to check the potential employee’s immigration employment status. From an employer perspective, this may be further complicated by the ongoing Brexit negotiations, along with a new immigration system which comes into play from 2021. Ultimately, the responsibility is on the employer to check that a potential employee has permission to work in the UK. Employers should give the candidate an opportunity to demonstrate that they have the right to work. The hiring organisation should consider keeping the job offer open while they do so, but if the position needs to be filled urgently, the employer is not obliged to keep the job offer open indefinitely. If the candidate cannot demonstrate a right to work, the hiring organisation should not employ the candidate.

Companies can face penalties and criminal offences if they are found to be employing a person subject to immigration control with no right to work for the job in question. A fine of up to £20,000 could be applied for each illegal worker found in your employment. A company could also be charged with a criminal offence where they could be sentenced to prison for up to five years with an unlimited fine.

Right to Work Checks as Part of a Comprehensive Background Screening Programme

Right to Work documentation verification as part of a comprehensive background screening programme helps to guide employers on best practices, as well as supplement their own investigations to ensure their employees have the legal right to work in the UK. The cost of getting this wrong can be huge, therefore Sterling’s latest edition and part of a growing suite of identity products, UK Right to Work ID Verification, provides an extra layer of protection that integrates ID technology seamlessly at the start of the process. This features artificial intelligence, fraud detection and facial recognition technology helping to reduce fraud and speed up hiring and screening all at the same time.

Updates to the Right to Work Process

As you may have heard, on  30 March 2020, as a result of the COVID-19 pandemic, the Home Office amended their guidance temporarily to make Right to Work checks easier for employers to carry out. This allows checks to be conducted via video calls, in addition to applicants and employees being able to send scanned documents or even photos through email or a mobile app, in-place of sending original documentation. In the event an applicant or employee is unable to provide any of the accepted documents listed, the employer is able to check this through the Employer Checking Service. The Home Office will provide instructions as to when these measures will come to an end, reverting back to the original checking processes detailed in the “Right to Work checks: an employer’s guide“. It’s also important to consider any retrospective checks needed after this period, as detailed by the Home Office.

While negotiations around Brexit continue, future changes could be around the corner. Sterling’s UK ID Verification is built to automatically incorporate future changes to immigration law from the UK Home Office, therefore helping to remain compliant throughout.

To learn how Sterling’s UK Right to Work ID Verification works and how this can help your organisation deter identity fraud whilst creating safer workplaces, click here.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.