13th December 2022 | Emma Peacock | Employment, Immigration

Partner in the business immigration and global mobility team at Sherrards solicitors, Emma Peacock, explains what Right to work checks are and how employers must take appropriate steps to ensure they avoid illegal working.

No one is in any doubt that in various sectors, there is a skills shortage affecting not just the UK but the whole world. This, together with the immigration changes introduced by the UK Government earlier this year and the inherent difficulties in bringing staff into the country because of Brexit, is making it on some occasions tricky for employers to find the staff they need.

When the employer has finally found the ideal candidate, the legal obligation to conduct basic checks on every UK-based employee to verify that they have the required permission to work in the UK must be carried out before they can start work. These must be carried out indiscriminately on all potential employees, regardless of their nationality, race, or ethnicity. Sometimes these checks result in questions about the authenticity of the documents provided.

After the hard search, whilst it may be tempting to overlook the reliability of such documents, employers need to be vigilant about the Right to Work checks as the repercussions of getting this wrong for both the business and the individual(s) carrying out the check by way of civil and criminal penalties are severe and may have lasting implications.

During the COVID-19 pandemic, rules were introduced to make the right to work checks slightly easier to carry out, these could be made via video and by using copied rather than original documents. This flexibility was removed back in October and what follows below, is a recap of the checks involved along with the potential fines for non-compliance:

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 either a full-time or temporary basis. There is also a review of the type of work to be undertaken by the proposed individual as it is important to ensure that both aspects of the checks are fully compliant with Home Office regulations.

Are right to work checks mandatory?

All employers are legally required 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.

 What are the necessary steps that must be taken by employers to ensure a right to work check is compliant?

There are three steps to be undertaken to ensure that a right to work check is compliant:

Step 1 –obtain all relevant documentation

Step 2 –check all documentation is valid and compliant

Step 3 –retain copies of all submitted items and completed checks

 Is there a specific way in which right to work checks must be conducted?

 All UK employers 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 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?

There is a free, online Employer Checking Service (ECS) available to all employers allowing them to fulfil their duty to conduct right to work checks.

This service provides an almost instant immigration status check and can be used in circumstances where potential employees are unable to provide acceptable documentation at the time of the manual documentation checking; which can happen where potential employees are awaiting Home Office decisions on pending applications, reviews or appeals.

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 (per illegal employee)
  • Sponsor Licence suspension / revocation (or down-grading) which can have a serious effect on business plans.
  • Enforced debt action
  • County Court judgement
  • Business closure

How can a solicitor help with right to work checks?

Right to work checks are a mandatory, legal requirement. Online or digital checks require the employer to check the relevant document or information online and retain a record of the check.

Employers are not expected to be experts on fraud detection – but there are certain expectations on employers to perform their legislative duties under the prevention of the illegal working regime and the Code of Practice for employers.

There are also previous Codes of Practice which may apply when the period of employment started during the time that the previous code was current, and where no repeat check of an existing employee’s right to work has been required.

If an employer fails to carry out its checks correctly, the business will find itself at significant risk of facing one of the above stated penalties. An employer who knowingly employs someone without the correct immigration status may be committing a criminal offence.

It is therefore always advisable for employers to seek specialist immigration advice at each stage of the employment process, particularly since the sweeping changes set out in our immigration briefing earlier this year can now be seen in the existence of a new set of visas which may not be as familiar to the employer, with different checks required for different visas.

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