Who is required to perform right to work checks.
By law all employers in the UK, without exception, have to perform right to work checks or face civil penalties.
Employers who carried out the checks correctly have an excuse against liability for a civil penalty if an employee is found working for them illegally.
How to perform right to work checks.
The procedure for the right to work checks is fairly simple. You need to obtain a document(s) from your prospective employee that show the right to work in the UK. Then you must make sure that the document(s)presented are genuine. Next step is to make a clear copy of each document in a format which cannot later be altered, and retain a copy securely: electronically or in hardcopy.
The temporary adjusted checks-Covid 19
Due to the ongoing epidemic situation, Home Office have introduced temporary changes to the right to works checks. That regime will be in force until 5 April 2022. The changes will be in force until Home Office introduces more permanent solutions that will replace existing system. As a result of changes employers can now:
- carry out checks over video calls
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
The way in which temporary checks can be conducted is set out on the Home Office website. Employers are expected to:
- ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
- arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
- if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.
Online right to work checks.
In case of those with:
- a biometric residence permit,
- a biometric residence card
- who have status issued under the EU settlement scheme
you can perform right to work checks online. In order to do so you need your employment candidate’s ID document and his right to work share code. Your prospective employee has to generate a code by going to this page.
Once you have the employee’s date of birth and right to work share code you can perform an online right to work check by going to this webpage. After checking the details of the employee you need to make a screenshot of the response of the system to your enquiry and either print it or save a copy on your system. You have to keep that copy on your records for the duration of the employment of the candidate and two years after termination of employment.
How to do a physical document check.
If you cannot do the online right to work check you need to perform a physical document check. The best way to prepare for that is to go to this government webpage and download right to work pdf checklist. It is only three pages long and has all the information needed to perform right to work check.
Your task, in simple words, is to obtain documents from the candidate and check their authenticity. After that you have to make a physical copy of all those documents and record the date of the right to work check you have conducted. You have to keep those documents on your records. The list of suitable documents is included in the PDF checklist and is divided into three groups. List A and List B. List B is divided into two groups.
If you have used a document from List A in your right to work checks, you acquire a continuous statutory excuse for the full duration of the employment. You are not subject to civil penalties when Home Office finds that your employee had no right to work in the UK.
If documents from Group 1 of the List B of documents were used, you have a time-limited statutory excuse which expires when the person’s permission to be in the UK expires.
In case of documents from List B: Group 2, your time-limited statutory excuse expires six months after date specified in your Positive Verification Notice. After that period passes you have to perform right to work check again.
That is all you need to know to perform right to work checks. You do not need help from an expert lawyer (or any lawyer for that matter) to do them. But if you have questions nonetheless, do not hesistate to contact us using the form below.