Do your employees have the right to work?

Employment and right to work checks

Many employers we speak to are still failing to make sufficient checks when it comes to a potential employee’s legal right to work in the UK. One reason for this is that our workplaces are also becoming increasingly diverse due to the number of workers coming from other EU countries to work in the UK and thus employers are frequently interviewing candidates from a diverse range of backgrounds and therefore the lines have become blurred.

In the past an applicant’s limited English might have triggered the checks, or even a CV detailing the address of previous employers or educational institutions outside of the UK. In today’s multi-cultural and international society, such examples are becoming more commonplace and thus managers are failing to make the link between a foreign applicant and the need to make the eligibility checks.

Equally, employers who rely on these trigger points are also running the risk of a discrimination claim by only undertaking checks on potential employees who raise their concern. We encourage all employers to introduce the practise of eligibility checks for all potential new employers irrelevant of any concerns or doubt.

This has become even more important for employers - prior to 6th April 2014 the maximum civil penalty for illegally employing an immigrant was £10,000 but this has now risen to £20,000.

Find out which industry sector has the most migrant workers, and read other statistics on this subject.

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NDR's quick guide for employers making eligibility checks:

You should carry out checks on all employees before they start working for you to ensure you avoid bias of their background, appearance or accent.

The documents that are acceptable for proving someone has the right to work in the UK are split into two lists – referred to as simply ‘List A’ and ‘List B’. You should always refer to these lists to make sure that you ask for the right documents. Any of the documents, or specified combinations of documents, described in ‘List A’ show that the holder has an ongoing right to work in the UK. If you correctly carry out checks when ‘List A’ documents are given to you, then you will have an excuse against payment of a civil penalty for the duration of that person’s employment with you.

Any of the documents, or specified combinations of documents, described in ‘List B’ show that the holder has a right to work in the UK for a limited period of time. If you correctly carry out checks when ‘List B’ documents are given to you, then you will have an excuse against payment of a civil penalty for up to 12 months from the date of the check. You will only keep your excuse if you carry out repeat document checks at least once every 12 months.

Employers should note that the requirement for a properly documented National Insurance number will only provide an excuse when given to you in combination with one of the acceptable documents, as specified in Lists A and B.

How do I carry out right to work document checks?

To avoid the risk of a civil penalty for employing an illegal worker you should follow Steps 1 – 3 below for every person you are looking to employ, and every existing employee with a time limit on their right to work:

Step 1

You must ask for and be given one of the single documents, or specified combinations of documents from List A or List B. You must only accept original documents.

Step 2

For each document, you must take reasonable steps to check that it is genuine and satisfy yourself that the person presenting it is both the rightful holder and allowed to do the type of work you are offering. You should do this by:

  • checking any photographs are consistent with the appearance of the person; and
  • checking any dates of birth listed are consistent across documents and that you are satisfied that these match up with the appearance of the person; and
  • checking that the expiry dates of any limited leave to enter or remain in the UK have not passed; and
  • checking any UK government endorsements (Biometric Residence Permits, stamps, stickers, visas) to see if the person is able to do, or can continue to do, the type of work you are offering; and
  • satisfying yourself that the documents are genuine, have not been tampered with and belong to the holder; and
  • asking for a further document in explanation if you are given two documents which have different names. The further document could, for example, be a marriage certificate or a divorce decree absolute, a deed poll or statutory declaration.

Step 3

You must take a copy of the relevant pages of the document in a format which cannot later be altered, for example, a photocopy or scan. In the case of a passport or other travel document, the following parts must be copied:

  • The document’s front cover and any page containing the holder’s personal details; and
  • Any page containing UK government endorsements showing their permission to be in the UK and their right to carry out the work you are offering.

You must copy all other documents in full; this includes both sides of a Biometric Residence Permit. We advise that you write on the copy of the document the date on which you took the copy.

Finally, you must then keep a record of every document you have copied. We recommend that you keep copies of the documents securely for the duration of the person’s employment and for a further two years after they stop working for you. By doing this, you will be able to check whether you have complied with the law or if you are required to pay a civil penalty. If you require further guidance, then the NDR team are only too pleased to assist.

For a more detailed list of requirements, and for keeping up to date, click here to visit the Gov.uk website.