November 12th, 2020 | Sterling

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

In the UK, all employers are required by law to check 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, presented a webinar earlier in the year, “Background Checks and the Practical Steps to a Frictionless Hiring Program” to walk through the considerations a company must take into account to establish a seamless hiring process. The session featured Sterling’s UK Right to Work ID Verification solution, which has been helping organisations deter identity fraud, remain compliant, and deliver a greater candidate experience. 

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 undertake.

Under UK law, the employer plays a role in preventing illegal working by undertaking simple checks on an employees’ eligibility to work in the UK. Following a Right to Work checklist  is required to be completed before employment. If an employee has time-limited permission to work in the UK, follow-up Right to Work checks on existing employees will also be required. 

The UK Home Office has set specific rules for Right to Work checks that an organisation must follow before employing an applicant. Due to the coronavirus, there are temporary changes to the way employers check documents. We’ll explore this in a little more detail further on.  

Which Documents are Acceptable and What Must Be Checked?

When performing UK right to work checks, 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 consistent 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 visa limitations on the number of hours they can work). 

The Home Office’s “Right to Work checks: An Employer’s Guide” provides information about which documents are acceptable for companies to check.

List A contains documents which a business can accept for a person who has the 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 needed.

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.

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 avoid civil penalties by obtaining a statutory excuse. 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 for review
• 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

Sterling’s UK Right to Work checks service helps to verify document authenticity, and provide greater hiring confidence, but 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 UK 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 UK Right to Work documents, a company must ask the home office to access  potential employee’s immigration employment status via the Employers Checking Service. 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 provide evidence 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 leave the job offer open indefinitely. If the candidate cannot demonstrate a right to work, the hiring organisation should not employ the candidate. 

Failure to perform comprehensive UK right to work checks, or knowingly employing illegal workers, can be extremely costly for employers.

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 Program

Right to Work documentation verification as part of a comprehensive background screening program 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, thus allowing companies to perform full UK right to work checks. 

Updates to the Right to Work Process

As you may have heard, on  the 30th March 2020 and in place until 5th April 2022, as a result of the COVID-19 pandemic, the Home Office amended their guidance temporarily to make 2021 UK Right to Work checks easier for employers to carry out. This allows new checks to be conducted via online video calls, in addition to applicants and employees being able to send scanned documents or even photos through email or a digital 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 the Employer Checking Service. Once the temporary measures come to an end in April 2022,   the process will revert back to the original checking procedures as 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. 

From Brexit to the impact of Covid, is your organization prepared for future changes that 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 organization remain compliant, 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.