Employers, Recruitment Policies and Right to Work Checks
As an employer, your recruitment policy is an important tool in helping you comply with a wide range of employment legislation. This includes making sure that anyone you employ actually has a right to work in the UK. In many cases this requirement is quite straightforward but it really does pay to get it right.
Employers Must Carry Out Right to Work Checks
Employers have been required, by law, to carry out right to work checks on employees since 1996 (under the Asylum and Immigration Act). New legislation (Immigration Act 2016) came into force in July 2016 year introducing stiffer penalties if employers fail to carry out the necessary immigration/residency checks. The ongoing Brexit negotiations have not changed these requirements nor the rights of EU nationals in the UK.
Penalties for Employers
The onus is now on the employer to prove that they have performed the necessary right to work checks in order to avoid penalties if a worker is later found to not, in fact, have had the legal right to work in the UK.
Employers face the prospect of a fine of up to £20,000 per illegal worker if they don't carry out the right checks or don't do them properly. And a hefty jail sentence of up to 5 years and/or an unlimited fine if an employer is found to have employed someone they knew (or had 'reasonable cause to believe') didn't have the right to work in the UK. Suffice to say - it pays to get it right.
The restaurant chain, Byron Hamburgers made the news in July last year when management assisted immigration offers in detaining 35 workers under suspicion or working illegally in the UK. As a result, 20 people were deported. False identity documents had been used by employees. Byron, as an employer, avoided penalties because they were able to show that they had met their legal obligations.
Right to Work Checks in your Recruitment Process
Before employing anyone an employer must carry ask for, inspect and make copies of specific documents in order to confirm that the potential employee can be legally employed to fill the position on offer. This applies to each and every person employed - not just those who the employer thinks are not UK nationals. It's important to apply the checks consistently and correctly to avoid potential accusations of discrimination.
It makes sense to have a specific 'document checks' step in your recruitment procedure and to ensure that all staff involved in the recruitment process understand what is required. It would make sense to do the right to work checks at the same time as you carry out your standard confirmation of identity checks.
For employers who largely employ UK or EU nationals, the right to work checks will amount to little more than inspecting the employees passport, taking a photocopy of key pages and storing. In most cases an employer will be able to carry out the necessary checks themselves. In a small number of situations the employer will need to contact the Employer Checking Services to confirm the status of the employee.
The main steps of the right to work checks are:
- Obtain - original versions or appropriate document(s) from the employee
- Check - that the document is valid in the presence of the employee
- Copy - the document, record the date copy was made and then store safely.
The documents you can accept as proof of right to work are set out in two lists: List A and List B. The full list can is set out in this employers checklist.
The documents in List A are things such as:
- a UK passport
- passport or national identity certificate from an EEA country or Switzerland
- a full birth certificate issued in the UK and proof of NI number
- a current immigration status document with endorsement showing indefinite right to stay
- certificate of registration or naturalisation as a British subject with proof of NI number
- Biometric Residence Document showing indefinite leave to stay.
There are others documents and more detail in the checklist cited above. If the candidate produces a valid document in List A and the employer conducts the right to work checks correctly then no further checks will be required during the course of employment. The employer will have a 'continuous statutory excuse'.
List B is a little more complicated and covers documents that provide the (potential) employee with a temporary right to work in the UK. If an employee provides adequate documentation from List B then the employer will have a 'time limited statutory excise' if the checks are carried out properly. The checks will have to be carried out again once the permission ends.
As well as making sure the correct documents are produced, employers are also required to check that the documents are genuine. Care must be taken since the checks are more than just checking that the photo on the passport (or other document) matches the face of the employee.
The validity of the documents must be checked in the presence of the document holder - either in person or by video link. The employer must be in possession of the original of the documents. If, after carrying out the necessary checks, the document later is found to be a fake then the employer will only be liable if it is 'reasonably apparent' that it is false.
Amongst the things an employer should check are:
- Photos - are the photos consistent across all documents and look like the employee?
- DoB - are the dates of birth consistent across all documents and the appearance of the employee?
- Expiry dates - are all expiry dates in the future?
- Work restrictions - is the employee entitled to work for you and undertake the type of work on offer?
- Genuine - do the documents look genuine, unaltered and belong to the employee?
- Names - if names are not consistent across documents has a good reason and documentation provided (e.g. marriage certificate)?
Recruitment staff don't need to be experts in document forgery but it would be sensible to become familiar with the format and security features of key identity documents (e.g. passports, residence permits) in order to do sensible checks. Examples of many types of identify documents, and links to other sources are given in the GOV.UK guide to Acceptable Right to Work Documents.
Right to Work Guide
The GOV.UK website provides a range of guides and tools to guide you through the right to work checks. A good starting point is the written Guide for Employers.