All employers have a duty to check that a potential employee is entitled to work in the UK. Here we provide a guide on the points that must be considered.
There are 3 basic steps to conducting a right to work check:
Step 1: Obtain original versions of one or more acceptable documents.
List A contains the range of documents which are acceptable for a person who has a permanent right to work in the UK. If you conduct the right to work checks correctly before employment begins, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any further checks.
List B contains a range of documents which are acceptable for a person who has a temporary right to work in the UK. If you conduct the right to work checks correctly, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse. This will generally be when the permission to be in the UK comes to an end.
Step 2: Check the document’s validity in the presence of the holder.
When you are checking the validity of the documents, you must ensure that you do this in the presence of the holder. This may be a physical presence in person or via a live video link. In both cases, you must be in the physical possession of the original document or documents. You cannot rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document.
You should conduct right to work checks on all potential employees. Do not simply check the status of those who appear to be migrants. Treat all potential employees in the same way
Step 3: Make and retain a clear copy, and record the date the check was made.
You must keep a record of every document you have checked. This may be a hardcopy or a scanned and unalterable copy, such as a jpeg or pdf document. You should keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you.
You must also make a record of the date on which you conducted your check. This may be by either making a dated declaration on the document copy or by holding a separate record, securely, which may be shown to us upon request to establish your statutory excuse.
This date of check may be written on the document copy as follows: ‘the date on which this right to work check was made: [insert date]’, or you may make a separate manual or digital record indicating the date you conducted the check and copied the documents.
Additional evidence from students
When conducting checks, if you are presented with documents indicating that the holder is a student with a limited right to work in the UK during term time, you are required to obtain and retain evidence of their academic term and vacation dates.
Specific Points to Note:
- Working illegally is a criminal offence. Illegal workers face having their wages seized. They may also be prosecuted and can be imprisoned for up to 6 months.
- If you are found to be employing someone illegally and you have not carried out the prescribed checks, you will face robust sanctions which could include:
- A civil penalty of up to £20,000 per illegal worker;
- A criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine;
- Closure of the business and an application for a court compliance order;
- Disqualification as director;
- Not being able to sponsor migrants; and
- Seizure of earnings made as a result of illegal working.
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