Every employer has a legal duty to only hire people with permission to work in the UK.
The way to determine this is through a right to work check. This provides a statutory excuse against any breach of illegal working or safe working standards.
If you fail to follow right to work compliance, you could end up facing serious consequences. Like hefty fines, business closure, and even criminal prosecution.
In this guide, we'll look at what right to work checks are, what the law covers, and how to manage document checks properly.
What is a right to work check?
A right to work check is when you examine a person's identity documents that proves they have permission to work.
These pre-employment checks must be done before a new employee starts work. They count as one of many verification documents needed to work in the UK. Employers must perform checks on all their employees - regardless of their nationality.
It also doesn't matter what industry you work in, or how many employees you hire. Right to work guidance provides statutory defence against any civil penalty relating to employment.
What right to work details are needed?
The first details needed for a right to work check are the person's identity documents and immigration status. This may come from examples like:
- Biometric residence permit (BRP).
- Biometric residence card (BRC).
- Settled status under EU settlement scheme (EUSS).
If they can’t provide proper documents, you could end up hiring a potentially illegal worker. Here, employers could be held liable for a civil penalty or even criminal prosecution.
How long should you keep right to work documents for?
Right to work documents must be kept for the duration of the person’s employment – plus two years after the end of their job.
The potential employee must present original documents for a right to work check. Once you've verified them, you should make legitimate copies and record the date of the check.
These copies must also be kept for the duration of their job - plus two years afterwards.
What is the law on right to work checks?
Every UK employer has a legal duty to prevent illegal employment and modern slavery acts.
That's why you must carry out proper pre-employment checks to see if a prospective employee has a legitimate right to work in the UK.
When you carry out right to work document checks correctly, you gain statutory defence against civil penalty. It shows you've taken good measures to make sure the proper checks have been done for all workers.
UK immigration laws do change over time; so, it's hard to keep updated with a statutory defence or compliance. However, you must comply with the Home Office's right to work guidance and Code of Practice. And the Immigration, Asylum and Nationality Act 2006, too.
What happens if you breach right to work compliance?
There are serious consequences if an employer breaches right to work compliance.
All workers have a right to work in the UK and to do any particular job. But you can’t hire anyone that doesn’t pass right to work checks. Even if they're a sponsored worker or have legit UK VISAs.
Neglecting this may lead to you hiring an illegal worker. The punishments for this can range from Home Office inspections to:
- Civil penalty for illegal working (fines of up to £20,000 per illegal worker).
- Criminal prosecution.
- Disqualification of trading licenses.
- Business disruption and closure.
- Added to a civil penalty offender list (under Home Office regulations).
Do EEU workers need Right to Work checks?
Yes - all EEA, and Swiss employees also need to pass right to work checks to work in the UK. They'll need to hold pre-settled status, settled status, or VISA just like foreign nationals.
Employers don't have to carry out retrospective right to work checks on existing EEU workers - if the checks have already been done.
Do EEU workers without settled status need right to work checks?
If an EEU worker doesn't have settled status, the rules on right to work checks vary slightly.
As of July 2021, EEU settlement scheme is no longer taking on new applicants. However, the Home Office has allowed a grace period for EEA nationals (and their family members) who are waiting for their settlement status.
If an EEU worker doesn't have lawful settlement status, you won't have to terminate their job provided:
- They were hired by your business before 23:00 on 31 December 2020. (This is to make a late application to the EUSS).
- They sent their application within the grace period.
- They've provided a Certificate of Application (COA) during an Employer Checking Service.
If their application is pending after six months, employers should carry out a follow-up check. This gives you a statutory excuse to continue their job for the time being. If their application has been denied, employers have reasonable grounds to terminate employment.
That’s because the employer won’t be given a Positive Verification Notice (PVN) if an application is refused. Therefore, they will need to take steps to terminate the employment accordingly.
How to conduct a right to work check for new employees
When it comes to verifying employment documents, there are certain requirements you need to follow. The Home Office's right to work guidance outlines four steps:
- Choose a right to work check method
- Obtain an original document.
- Check for authenticity.
- Retain legitimate copies.
Let's look at ways to conduct a right to work check for new employees:
Step 1: Choose a right to work check method
In the UK, there are several ways to conduct right to work checks for new employees.
It might be hard to choose which method to follow. This is because there are several ways you can follow – but it all depends on the individual and their immigration status.
There are four methods outlined under the Home Office guidance:
- Manual right to work checks.
- Digital right to work checks.
- Online right to work checks.
- Employer checking service.
Let's look at each method in more depth:
Manual right to work checks
A manual check allows employers to physically meet a potential employee to check their right to work eligibility.
Meeting the person enables you to verify their original documents yourself. This method is used more often since the removal of social distancing regulations. But employers can still check them via video-call.
Usually, manual checks are held when a potential employee can’t do a right to work online check; or employers can't access an Identity Service Provider (IDSP) to verify documents.
Digital right to work checks
A digital right to work check allows employers to verify a potential employee remotely
Digital right to work checks use Identity Document Validation Technology (IDVT) to verify documents. But this is only possible if it's recognised by certified Identity Service Providers (IDSP). IDVT is also only available when hiring British and Irish citizens.
When employers use Identity Document Validation Technology, it reduces human errors. But the Home Office states only digital checks can go through an Identity Service Provider (IDSP).
Candidates are legally allowed to refuse digital right to work checks; and you cannot discriminate against this right. In this case, you should allow them to go through a manual check instead.
Online right to work checks
An online check allows employers to use a share code instead of performing a manual check on a potential employee.
Using codes helps to verify people before they start work in the UK. An online check can be used for a:
- Biometric Residence Permit (BRP).
- Biometric Residence Card (BRC).
- Frontier Worker Permit (FWP).
People with these permits can only prove right to work eligibility through the Home Office online service (since 6 April 2022). Employers can no longer accept physical biometric permits or cards - even if they have a leave expiry date that's later than the right to work check.
Employers can only gain access to biometric permits and other identification with the prospective employee's permission. The share code is provided through the Home Office's online service. It must start with W - anything else will be rejected.
Biometric residence permit
The UK government has decided to phase out the use of physical documents (like biometric residence permits) by the end of 2024. The Home Office offers guidance on how to conduct an online check for these documents.
This follow-up check will show an expiry date for their immigration permission. Be aware, this isn’t to be confused with the expiry date of the card or permit itself.
Employer Checking Service
An Employer Checking Service (ECS) allows employers to comply with right to work checks procedures. It's a free online service found on the Home Office website.
ECS is also used for those with pre-settled or settled status under the EU Settlement Scheme (EUSS).
And it's used when a prospective employee isn't able to do an online check; or can't provide documents for manual checks. For example, a person could be waiting on the Home Office for an administrative review or appeal decision. Or they don't have official documents to prove their status as of yet.
eVisa holders
eVisa holders can now provide a share-code to verify their right to work (as of February 2023). This applies when:
- Making an in-country eVisa (to remain in the UK under immigration rules).
- Making an ID check application.
- Waiting for a decision on their existing immigration permission (like an administrative review or appeal).
eVisa employees have a statutory excuse to remain for six months in these situations. They also don't need to go through the Employer Checking Service (ECS) either. However, employers must conduct follow-up checks once the eVisa expires.
Step 2: Obtain original documents
This is when the prospective employee presents original documents needed for a right to work check. This must be clarified throughout the entire recruitment process.
Non-original copies (like photocopies) will not be accepted as legal evidence for right to work checks.
When it comes to right to work checks, there is a set list of acceptable documents. The Home Office categorises them under List A and List B.
Acceptable documents: List A
List A is used for people with permanent right to work documents for the UK. For example, British citizens or those with Indefinite Leave to Remain (IRL).
List A - British citizen
- They must have a valid UK passport to prove their right to work. (Recently expired passports can still be used as acceptable documents - if the photograph isn't too dated).
- If their UK passport is unavailable, they may use their National Insurance Number (NIN) along with a birth or adoption certificate.
List A - Indefinite Leave to Remain (ILR)
- They may use a Biometric Residence Permit (BRP) along with their national passport to prove their right to work (although this may change soon). Their BRP mustn't have an expiry date or time-limit for staying in the UK.
- They may use any other identity document issued by a government agency or previous employer.
Acceptable documents: List B
List B is used for people whose immigration status is time-limited. For example, EEA nationals (coming to the UK since 1 January 2021).
List B - Group 1
- They have a limited time to work and live in the UK; (document checks must be made before their expiry dates).
- They must have a copy of their immigration status document (with a photograph). This will show they have the correct leave and work permissions.
- They may use any other identity document issued by a government agency or previous employer.
List B - Group 2
- They have a limited time to work in the UK (document checks must be done every six months before the expiry dates).
- They may have a Positive Verification Notice (PVN) alone.
- They may have a PVN along with a Certificate of Application (COA) or an Application Registration Card - both showing permission to work.
Step 3: Check for authenticity
This is when the employer needs to check the authenticity of a potential employee's right to work document.
Employers aren't expected to know how to spot fraudulent documents. But you must follow the proper procedures when dealing with fake or misleading work papers. To check for authenticity, you should:
- Ensure the person presenting the documents is the same person you meet (in real life or video-call).
- Check if all valid passport pages are accounted for.
- Check if their personal information matches with other physical documents (like the individual's date of birth, full name, nationality, etc).
- Check documents which have certain paper-weight, holograms, and machine-readable zones (MRZ).
Make sure you check the expiry date on each one; and note down if they mention any work restrictions.
Positive Verification Notice
Sometimes, a potential employee may face issues with providing physical documents that proves their right to work. In this case, you should request a Positive Verification Notice (PVN) through the Employer Checking Service (ECS).
Employers should request a Positive Verification Notice when:
- The employee is waiting for an administrative review or appeal from the Home Office.
- They're a long-term resident who has lived in the UK since before 1988.
- They have an Application Registration Card (ARC).
- They have a Certificate of Application (COA) less than 6 months old.
Step 4: Retain legitimate copies
The last step involves retaining a legitimate copy of each original document. This should only be done after all verification steps have been followed.
At this point, you should keep a clear and non-edited copy of each document. This can be as a hardcopy or a digital one, like a PDF or HTML file.
Employers are legally required to retain evidence and copies throughout the employee's time with them - plus two years after they leave. This includes leaving through redundancy, dismissal, or job termination.
When using or storing personal information, you must keep compliance with data protection and GDPR laws.
Do British and Irish citizens need a right to work check?
Yes, employers must carry out a right to work check on all their employees - including British and Irish citizens.
You should never assume a person's nationality or eligibility to work in the UK. Or it could lead to unlawful discrimination claims at an employment tribunal (ET).
You can conduct a British or Irish employee's right to work check through viewing their passport. Or you can process their work documents through an online check service.
Do remote workers need a right to work check?
Yes, remote workers should go through a right to work check.
Since 6 April 2022, the Home Office allows employers to use certified Identity Service Providers (IDSP) to carry out digital checks on their behalf.
Do COVID-adjusted Right to Work checks still apply?
No, as of 30 September 2022, the COVID-adjusted right-to-work checks no longer run.
This was a temporary scheme from the Home Office that helped employers verify documents during social distancing regulations.
COVID-adjusted right to work checks were done via video-call; and documents were submitted electronically. These methods were all categorised as 'adjusted check undertaken on [insert date] due to COVID-19'.
Employers aren't legally required to do follow-up checks on anyone with a COVID-adjusted right to work check. But you must ensure they weren't hired as an illegal worker, either.
Get expert advice on right to work checks with Peninsula
Right-to-work checks can be tricky to manage. Making sure that you have all the correct documentation and follow-up checks in place can quickly become complicated.
Any mistakes could result in serious legal consequences. That's why you need to know all the steps you must take to put a stop to illegal employment.
Peninsula offers expert advice on right to work checks. Our HR team offers 24/7 HR employment advice which is available 365 days a year.
Want to find out more? Get advice from one of our HR consultants. For further support, call our telephone number 0800 028 2420.
