How to conduct a right to work check
Employers should conduct the right to work check before employing an individual. If an individual’s right to work in the UK is ‘time-limited’, the employer must carry out a follow-up check shortly before it comes to an end.
There are two types of right to work checks that will provide an employer with a statutory excuse: a manual document-based check and an online check.
The following three steps for each type of check need to be completed before employment commences to ensure you have correctly conducted a right to work check and therefore have established a statutory excuse.
Manual document-based check
1. OBTAIN original acceptable documents (see List A and B of Annex A of the full Government Guidance – please click HERE )
2. CHECK the documents are genuine and the individual presenting them is the prospective employee, the rightful holder and allowed to do the work offered by looking at consistency among photos and dates, work restrictions and expiry dates. This must be done in the presence of the employee (physically or virtually) but with physical possession of the original documents. If given false documentation you will only be liable for a civil penalty if is reasonably apparent that it is false.
3. RETAIN EVIDENCE – Make a clear COPY and record of each document in a format that cannot be altered (e.g., jpeg/pdf) and retain them securely (electronically or hardcopy) to evidence that you have established a statutory excuse. Employers must retain a secure record of the date on which the check was made either by making a dated declaration on the copy or holding a secure separate record. Copies must be kept for the duration of the individual’s employment and for two years after before being securely destroyed.
Checking an employee’s right work online relies on the employee first viewing their own Home Office right to work record and generating a service specific ‘share code’ which enables the employer unlimited access to the required information for 30 days.
1. Using the HOME OFFICE ONLINE SERVICE check the prospective employee’s right to work details using the employer part of the service (there is a migrant part of this online service- employers should not use this as this will not provide them a statutory excuse against liability for a civil penalty if illegal working is identified). Employers can access the service called ‘View a job applicant’s right to work details’ on GOV.UK and will need the ‘share code’ provided by the individual and their date of birth. Click HERE to access the service.
2. In the presence (physical or virtual) of the individual, the employer must CHECK the photo online is the individual presenting themselves for work. Employers will only establish a statutory excuse if the online check confirms the individual has the right to work and are not subject to any conditions preventing them from work.
3. RETAIN EVIDENCE of the online check by printing or saving the profile page confirming the individual’s right to work as a PDF or HTML file. This must be stored securely (electronically or hardcopy) for the duration of employment and two years afterwards before being securely destroyed.
These processes must be repeated for any follow up checks where the employee has a ‘time-limited’ right to work in the UK.
In some circumstance an Employer will need to contact the Home Office’s Employer Checking Service (ECS) (please click HERE ) to establish a statutory excuse through what is known as a Positive Verification (PVN). Employers should not contact ECS if continuous employment commenced prior to 29 February 2008 as this employment is out of the scope of the civil penalty scheme.
A link to the full Government Guidance on right to work checks can be accessed HERE
If you would like advice on Right to Work checks please contact a member of the Tamar HR team so we can assist you.