All employers should be aware by now that they need to be carrying out Right to Work checks on their employees, though there is often some confusion as to what constitutes a Right to Work check.

With the recent release of the Home Office Updates Guidance on Preventing Illegal Working it is essential that a Right to Work Check is carried out correctly.

So what is the Right to Work Check?

Checking that all staff working for you have the Right to Work in the UK is one of the key duties of an employer. It is an essential element for all businesses regardless of the size or industry sector.

What happens if I do not comply with the Right to Work Checks?

Failing to carry out a Right to Work check could result in the hiring of illegal workers. The maximum fine for this is £20,000.00 per illegal worker. If an employer knowingly hires someone who does not have the Right to Work in the UK that employer could face a lengthy prison sentence.

This would also be recorded on the Home Office central system and may affect your ability to hire foreign nationals in the future.

Should I not just carry out checks on non-UK Nationals?

The simple answer is no! Doing so could leave yourself open to potential claims.

Basically, everyone who works for your business, whether they are permanent or temporary, full time or part time, fixed-term or temporary workers or they are a zero-hour worker needs to provide evidence that they have the Right to Work in the UK. This also extends to work experience students and interns.

Requesting evidence of their Right to Work should be a standard part of the recruitment process. It is recommended that everyone is asked at the same stage in the recruitment process and that the same checks are applied universally across the company. Never make assumptions about someone’s Right to Work based on their race or ethnicity, their accent, their age, time spent living in the UK, family connections or their education.

The only exceptions are:

  • any agency staff that are employed directly by an employment agency;
  • Sub-contractors or staff directly recruited by a third party supplier;
  • Genuinely self-employed contractors, although caution must be exercised here as they can often fall into the ‘worker’ or even ‘employee’ category (despite the best of intentions) which means you as the ‘employer’ will have to check their Right to Work in the UK

When should the checks be carried out?

A Right to Work check should be carried out BEFORE the employee starts work . You may consider doing this as part of your recruitment process or asking for the necessary documents prior to the employee’s start date.

Once the initial checks have been done, you will only need to review it if the person’s immigration circumstances should change or if their visa is due to expire. In this case the checks need to be carried out more well in advance of the expiration of their visa.

What documents should I obtain?

There are a number of documents that can be checked to see if the person has the Right to Work in the UK depending on their circumstances. For example, a person may not have a British Passport. It is best to use the Home Office checklist and accompany this onto every HR file.

The employer should inspect the original document and make copies to retain on their HR file. They should sign and date the copy to state when this was obtained. When examining the document make sure you inspect it closely to ensure it is genuine and that it is a true likeness of the person you are employing.

We, at Lupton Fawcett, can advise as to how to inspect documents or provide your organisation with a detailed checklist as well as providing training on how to carry out Right to Work checks.

Students?

Non-EU students may have conditions on their stay and this will change between term time and non-term time. Employers should consider obtaining details of the individual’s course, education establishment as well as obtaining term dates for that establishment so that this can be retained on the HR file. Employers should ensure that the individual does not work more than the entitled hours as stated on their visa during term time.

So what changed on 28th January 2019

In April 2018, the Home Office launched a Right to Work Checking Service which enables UK employers to check the current Right to Work of a person and to see whether they are subject to any restrictions. The system works by the individual first viewing their Home Office Right to Work record online. They may then share this information with an employer if they wish by providing their employer with a code to access the record. Currently employers will need to request a paper document as well as the online service.

On 13th December 2018, a new Order was laid before parliament together with a revised Code of Practice on preventing illegal working. This Order states that employers will be able to rely solely on an online check from 28th January 2019 where a prospective employee has an immigration status that can be checked using the service.

However the system can only be used by non-EU nationals who hold a biometric residence permit/card, and EEA nationals who have been granted immigration status under the EU Settlement Scheme. EEA Nationals who have not been granted status under the EU Settlement Scheme will be required to demonstrate their Right to Work using the appropriate documents.

By using the online service, an employer will be excused from a civil penalty if:

  • The online check confirms that the employee is allowed to work in the UK and perform the role in question
  • Satisfies that any photograph on the online Right to Work site is of that the employee
  • Retains a copy of the online check for at least 2 years after the employment ends
  • Obtains and retains details of the term and vacation dates of the person’s course if they are a student

A further change under the Order is that employers can accept short-form birth certificates and adoption certificates together with a National Insurance number when conducting Right to Work checks for British Citizens who do not hold a passport.

At Lupton Fawcett we can manage Right to Work checks and train your HR staff as to how to apply them correctly. Immigration is becoming complex and responsibilities on businesses are constantly growing. For all your immigration needs, contact Arif Khalfe.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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