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Right to work

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Right to work checks: an employer's guide

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Disclosure and Barring Service

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Pre-employment checks for new recruits

Right to work check

You’ll have a statutory excuse against liability for a civil penalty for negligently employing an illegal worker if you carry out a prescribed right to work check on your new recruit before their employment starts and you keep a record of it. You must also abide by any restriction on the type of work they can do or the number of hours they can work.

There are three types of right to work check: (1) an online check using the Home Office right to work checking service. This must be used for EEA citizens with status under the EU Settlement Scheme and those of any nationality who hold a biometric residence permit/card or frontier worker permit and may be used for some other non-British and non-Irish citizens; (2) a digital check using the services of a third-party Identity Service Provider. This only covers British and Irish citizens who hold a valid passport/Irish passport card and who consent to this type of check; or (3) a manual check of physical documents. This is available if an online or digital check isn’t possible (see The next step ).

Tip. If you don’t want to conduct a digital check on British and Irish citizens, you can stick with a manual check. Always follow the government’s guide to right to work checks (see The next step ).

References

It’s advisable to request at least two work-related references, one of which should ideally be from the new employee’s most recent employer. Personal character references often have little value. Unfortunately, there’s no general legal obligation on employers to provide a reference, or to include specific information in it. You could try to follow up on a reference over the telephone.

Criminal record check

Rules about rehabilitation of offenders and data protection mean criminal record checks can only be carried out in limited circumstances. You can apply for standard disclosure (covers both “spent” and “unspent” convictions) via the Disclosure and Barring Service (see The next step ) where the role is an excepted occupation or profession, such as teachers, solicitors and doctors. For other roles, you could still request the individual to obtain a basic disclosure certificate (only covers “unspent” convictions), but you should only do this where you have a lawful basis for processing and you meet an additional condition for processing under the data protection legislation and you can justify it as relevant due to the specific nature of the role, e.g. the role involves handling large amounts of money, and there’s no less intrusive alternative.

Other checks

Other checks you might wish to undertake are: (1)  proof of academic/professional qualifications - ask the employee to provide their original certificates; and (2) proof of valid UK driving licence, if relevant - ask to see their physical licence and to give you a “check code” so that you can check their penalty points using the online Share Driving Licence service.

Tip. Make it clear at the start of the recruitment process what pre-employment checks you’ll be conducting on the successful candidate and then make the job offer conditional on those checks.

For a link to the DBS and a right to work checklist and the guide to right to work checks, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 5.