Everything Employers Need To Know About Conducting Right-to-Work Checks for Their Staff
This guest post has been provided by the team at Latitude Law, leading experts in UK immigration law. Nominated for Boutique Law Firm of the Year (11+ Employees) at the 2019 Modern Law Awards and Small Firm of the Year (1-5 Partners) at the 2020 Manchester Legal Awards. As featured in the BBC2 series “Who Should Get to Stay in the UK?”
You’ve finally found the right person for the job and you are eager for them to start. Before they do, however, you need to ensure that they have the right to work in the UK.
An employer must do one of the following checks before any employee commences employment:
A manual right-to-work check.
An online right-to-work check via a Home Office portal.
A right-to-work check using identity document verification technology (IDVT) via the services of an identity services provider (IDSP).
If the employer does the check correctly, they will have a statutory excuse against a potential civil penalty if it is later found that the worker does not have permission to work in the UK. It is important to remember that most statutory excuses are time limited.
Manual right to work checks
This mostly applies to British and Irish nationals. The first steps is to obtain an original document from List A or List B outlined in the Home Office’s right to work guidance: Employer's guide to right to work checks (publishing.service.gov.uk). This is your go-to guide when conducting any right to work check. You need to check the documents are genuine and that they match the identity of the person who is presenting themselves for work. You then need to copy the document in a format that cannot be altered e.g. a time-stamped PDF. The copy should be dated, so you can record the date of the check.
A copy of the document must be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed in line with your data protection obligations.
Home Office right to work check
For those prospective workers who hold an e-visa, a Biometric Residence Permit/Card or a Frontier Worker Permit, their status must be checked using the Home Office’s online checking service. It is important to note that you can no longer accept these physical documents as proof of status in the UK.
The prospective worker will need to generate a 9 digit code starting with ‘W’; this will either be provided from them or be sent directly to the employer from the portal. It should be noted that codes that start with ‘R’ or ‘S’ cannot be used for this right to work check. The employer can then use this code to undertake the check on the online portal (Check a job applicant's right to work: use their share code - GOV.UK (www.gov.uk). The individual’s date of birth will also be needed when accessing this information online.
The employer must check the photograph online is of the person they are conducting the check for. The page must be the ‘profile page’ which confirm the person’s right to work. This check can be done via a video call as the information is provided in real time from the portal. If the image of the individual on their digital profile is showing incorrectly or is of poor quality, you should advise the individual to update the image on their account.
A copy needs to be securely retained for the duration of the employment and for 2 years afterwards.
There may be some circumstances in which an individual may have permission to work but cannot provide their prospective employer with the necessary documents. For example, they have an outstanding application for permission to stay or provide an Application Registration Card (it is important to remember the latter – held by asylum-seekers - is only for shortage occupation roles). In these circumstances, the employer will need to contact the Home Office’s Employer Checking Service (ECS) (Use the Employer Checking Service - GOV.UK (www.gov.uk)) to ask for information about the prospective worker’s permission.
The ECS service aim to respond within 5 working days from receiving the request and the employer will need to receive a Positive Verification Report before the worker can start with them. Note that a check using this service only gives you a statutory excuse for a 6-month period, so a follow up check will need to be conducted before this expires.
Using an IDSP
IDSPs were introduced from 6 April 2022; since this date, employers can use IDVT technology to complete a digital identity verification right to work check. IDVT technology can only be used for British and Irish citizens who hold a valid passport or an Irish passport card. The Home Office provide a list of certified providers: Digital identity certification for right to work, right to rent and criminal record checks - GOV.UK (www.gov.uk).
It is the employer’s responsibility to obtain evidence of the IDVT check from the IDSP. The employer will only have a statutory excuse if they reasonably believe that the IDSP has carried out their checks in accordance with Home Office guidance. This means the employer must still be satisfied of the identity of the person and must retain the copy of the check throughout the period of employment and for 2 years after the employment ends. Responsibility for the check remains with the employer, not the IDSP.
Follow up checks
As mentioned above, most checks will only cover you for a limited period - usually if the worker has time-limited permission to work in the UK. You must ensure you do a follow-up check to before the worker’s permission to remain expires. If the employer fails to correctly do a check, they could be liable for a civil penalty and this can be up to £20,000 per worker.