When recruiting for new staff, it’s important to know how to conduct right to work checks properly. These checks allow you to be sure that your potential staff member has the right to work in the UK before they start working for you. Otherwise, if you employ someone who does not have the right to work in the UK, you and/or your company can face significant penalties. You could also face claims of discrimination if you only check a person’s right to work in certain circumstances, or you treat applicants differently based on the length of time they are allowed to work in the UK for.
Due to COVID-19 restrictions, the Government temporarily relaxed the requirements for manual right to work checks, allowing potential employees to send scanned documents rather than originals and employers to verify the documents over video calls. These temporary changes end on 30 September 2022, so you should ensure you are aware of how to conduct manual right to work checks after that date.
We’ve set out a refresher on how to conduct right to work checks below, as well as an update on the end of the temporary relaxations to manual right to work checks.
Reasons for conducting right to work checks
It’s important to conduct a right to work check on anyone you intend to hire, before they start work. Otherwise, you and/or your company may commit an offence if you employ someone who does not have a right to work in the UK. The penalties can be significant, including a hefty fine or even a prison sentence in serious cases.
Don’t make assumptions about a person’s right to work in the UK based on race or national origins; if you only check a person’s right to work in certain cases then you risk discriminating between applicants, which may lead to an applicant taking legal action against you.
When to carry out a right to work check
To avoid allegations of discrimination from applicants, you should check their right to work after the selection process has been concluded and a job offer has been made. You should make job offers conditional upon the right to work checks delivering results which you take to be satisfactory. See Offer Letter (short form) and Offer Letter (long form) for example offer letters you can use.
Job applicants may only have a right to work in the UK for a limited time. Provided that they can produce acceptable documentation, applicants with a time-limited right to work shouldn’t be treated any less favourably than other applicants.
How to conduct your checks
You can choose to either:
- conduct a right to work check online using the Government’s Online Service;
- conduct a check manually; or
- in some cases, from 6 April 2022 you can use certified Identity Service Providers (IDSP)) to carry out digital checks on your behalf. You can find a list of certified IDSPs here.
The free Government Online Service is a simplified process, removing the requirement for you to rely on hard copy documents. This service is compulsory for certain individuals (ie those holding a biometric residence card, biometric residence permit (BRP) or frontier worker permit (FWP)). You’ll also need to satisfy yourself that any photograph on the online right to work check is of the person you are employing (this could be done via a video call).
However, you may not be able to use the online service in some circumstances. If the service is not available for the individual in question, you’ll need to conduct a manual check. See below for the process for conducting manual right to work checks. Make sure you don’t discriminate against a job applicant if they aren’t eligible to use the online service.
For further guidance about how to use the Government’s Online Service to conduct a right to work check, see our Q&A.
Changes to manual right to work checks from 1 October
To conduct a manual right to work check, you have traditionally been required to obtain original versions of certain documents. You can find further guidance on which documents you need to check on the Government’s website.
Due to COVID-19 restrictions, the Government temporarily relaxed the requirements to obtain original documents from a job applicant and check them in person. This means that between 30 March 2020 and 30 September 2022, you’ve been allowed to accept scanned copies of the relevant documents and verify them over a video call with your potential employee. However, from 1 October 2022, these temporary rule changes will end, and you must revert to the traditional way of checking documents manually. This means that you if you conduct a manual check you must:
- obtain the job applicant’s original documents;
- check them in their presence;
- make and retain clear electronic or hard copies of the documents; and
- make a record of the date you performed the check.
You’ll need to take copies of any pages containing details of the job applicant’s nationality, photo, expiry date of documentation, and any other information showing they have the right to work in the UK. You should keep these copies securely for the duration of the applicant’s time working at your business, and for a further two years after they have stopped working for you. You’ll need to consider your data protection obligations when storing these copies.
For further guidance on how to analyse and check original documents, see our Q&A. You’ll also find guidance on the rules around right to work checks for EEA nationals.
In some circumstances, you may need to ask the Home Office to check an individual’s immigration employment status if they cannot provide their documents. Full guidance about immigration status is outside the scope of this service and you should speak to a lawyer if you have any concerns. For access to a specialist lawyer in a few simple steps, you can use our Ask a Lawyer service.
What to do now
You should take steps now to ensure your business is ready to conduct manual right to work checks in the correct way from 1 October 2022, to avoid financial and/or criminal penalties as well as potential discrimination claims. The Government has confirmed that you won’t be required to carry out retrospective checks on anyone whose right to work was checked using the temporary adjusted procedure between 30 March 2020 and 30 September 2022.
In general, it’s important that you and your team are up to speed with what types of right to work checks are required and when, and have systems in place to copy and store a job applicant’s data safely. You may want to consider providing a refresher training for your staff.
Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.