RECRUITMENT - 22.09.2022

Right to work checks: two traps to avoid

Correct process

Every UK employer is legally obliged to prevent illegal working and those who employ workers illegally can be fined up to £20,000 per employee.

If it transpires that someone is working illegally, their employer can avail themselves of a statutory excuse by evidencing a properly conducted right to work check for that individual.

Before employment

A right to work check must be carried out before the employee commences employment. Should a prospective employee tell you that they can’t find their original documents for checking, or they will provide them to you at a later date, you must delay their employment start date until after you can conduct a right to work check.

Risk. If you allow the prospective employee to start work before their original documents have been checked, you won’t be able to avail yourself of the statutory excuse to a civil penalty if they’re found to be working illegally.

Two traps

We’re sure that you meet your legal obligation to prevent illegal working and always conduct robust right to work checks prior to employment. However, there are two traps which can catch out even the most careful of employers and invalidate their right to work checks.

Where this happens, you won’t be able to rely on the statutory excuse and will potentially face a civil penalty for employing a worker illegally. So, what do you need to know?

Manual check dates

If you carry out a manual right to work check and then upload the documents to an HR or other software system later, this can inadvertently record the wrong right to work check date, i.e. the date it was uploaded to the system, rather than the date the check was manually carried out.

It will then appear that the right to work check was carried out after employment commenced.

Tip. The way to avoid this is by ensuring that anyone who carries out a manual right to work checks writes: “ The date on which this right to work check was made is..... (insert date)” on the copy documents when the check is made.

Name changes

The second potential trap is name changes and different names across the supplied right to work documents. There may be perfectly valid reasons for this, e.g. marriage or divorce. Nevertheless, you should request documents that evidence any name changes or discrepancies.

Tip. These can include but are not limited to a deed poll; a marriage/civil partnership certificate; decree absolute or final divorce order. You should also keep a copy of these documents.

Tip. You can ensure that you’ve conducted a compliant manual or digital right to work check by following our right to work checklist (see The next step ).

For a right to work checklist, visit https://www.tips-and-advice.co.uk , Download Zone, year 24, issue 17.