Right to Work Guidelines

Before employing someone, you must check that they are allowed to work for you in the UK. While discriminating against a worker for their nationality or their origin is not allowed, as an employer, you have an obligation to check that all of your employees have the right to work in the UK. While there are certain workers who have a permanent right to work in the UK, there are others whose rights are only temporary. The procedures you need to follow are different for each and you need to be aware of them. In this article we’ll guide you on what you need to do.

Who does Right to Work apply to?

If a worker is a UK citizen, a Swiss citizen or from one of the European Economic Area countries, they have the right to work in the UK. But anyone who is aged over 16 and subject to immigration control or is not allowed to carry out the work in question because they have not been granted leave to enter or remain in the UK, should be subject to a right to work check.

Workers from countries that are not covered by the UK, Swiss or EEA legislation can obtain the right through the points-based system or, in some instances via family or ancestral links with the UK. Right to work checks are to help reduce illegal working and are the focus of a joint campaign being run by various government agencies, HMRC, intelligence sharing and joint enforcement operations.

If you are planning to employ a worker who is not a UK citizen or covered by the other legislation, it is important that you are aware of your responsibilities and that you have the right procedures in place. Failing to check someone’s right to work can lead to a civil penalty of up to £20,000 per illegal worker and in more serious cases, a criminal conviction that could mean up to 5 years in prison and an unlimited fine. It’s for these reasons that you should take heed.

How has it worked up until now?

Until recently there was nothing in the rulebook saying that you had to carry out checks to prove that someone you employed had the right to work. That said, it has always been in the interest of employers to have systems in place to demonstrate that they’d followed the right procedure in case of a dispute or enquiry. So, while the rules in place about the Right to Work were more relaxed in the past, it has always been in the employer’s interest to cover their own back.

For employment between 29th February 2008 and 16th May 2014 a statutory excuse was established, and the guidelines set out here in October 2013 are still relevant today. Workers who started on or after 16th May 2014, a statutory excuse was established for their employment up to 28th January 2019 and the document checks that are still in force today can be found here.

What changes do you need to be aware of?

On 28th January 2019, the checks that you need to have in place to prove someone’s right to work changed, as have the penalties associated with employing an illegal worker. These changes mean that it’s in your interests as an employer to make sure that your systems are up to date in order to protect yourself and your workforce.

What do you need to do?

You should carry out right to work checks before employing a worker to establish their status. Some workers may have the right to work for a limited period, others may have the right on an unlimited basis and you need to be aware of this and act accordingly. You can check a person’s right to work online or by physically checking their documents.

Carrying out Right to Work checks

You can obtain a Right to Work Checklist here which will help you. In effect, you must carry out either a physical or online check before employment and if the worker’s rights aren’t permanent you must carry out a follow up check. To carry out a physical check, you must fulfil the requirements outlined regarding obtaining, checking and copying acceptable documents.

For British, EEA national or people settled in the UK with no restriction on their working, an initial check is sufficient as they have the right to work indefinitely. If someone has temporary permission to stay and work in the UK, you need to check the expiry of their permission and carry out initial checks all over again.

For other workers who have a Certificate of Application or an Application Registration Card which enables them to work, you need to contact the Home Office Employer Checking Service. When you do so, they will verify the right to work and give you a positive verification notice to confirm their decision. This means that you have a statutory excuse for 6 months, at which time you need to repeat the check.

Do you need help?

Carrying out Right to Work checks needn’t be onerous, but for some employers it is complicated. Add to this, the fear of fines and even imprisonment, and many employers choose to either avoid employing non UK citizens and miss out on skills or other opportunities, or they decide to take the risk and not carry out the required checks. Both options are far from ideal.

If you’re looking to grow your workforce with workers who are non-UK citizens, we would encourage you to take your responsibilities seriously. If you need help, reach out. The team at Payplus is here to help you and to make sure you stay on the right side of the law and make the best decisions for your business.