Ensuring that your employees have the right to work in the UK is one of the most important legal obligations you face as an employer. Failing to carry out proper checks can lead to fines, sanctions, and even reputational damage. Additionally, if you are a sponsor licence holder, conducting right to work checks compliantly is crucial to demonstrate to the Home Office that you can maintain your sponsor duties as an Authorising Officer. This comprehensive guide will walk you through the entire process of conducting a right to work check, explain why it is necessary, and help you avoid common mistakes.
What is a Right to Work Check?
A right to work check is a legal requirement for UK employers to verify that prospective employees are eligible to work in the country. Employers must perform this check before hiring anyone, regardless of nationality, and must keep records of the verification process.
Why is it Necessary?
The UK government requires employers to conduct right to work checks to prevent illegal working. Under the Immigration, Asylum and Nationality Act 2006, an employer who cannot show they ran a compliant check faces a civil penalty of £45,000 per worker for a first breach within a three-year period, rising to £60,000 per worker for a repeat breach. A 30% reduction is available on a first breach if the penalty is paid within 21 days. These are per-worker figures, so an employer with several people in scope can face a bill well into six figures.
It is worth being clear about what actually triggers the fine. A penalty is issued where you cannot rely on a statutory excuse, which is the protection a correctly completed check gives you. The liability follows the missing evidence, not the hiring decision itself, so an employer who was genuinely deceived by convincing documents is still protected if the check was carried out properly and recorded.
For more details on potential government fees, check our visa fees calculator.
How to Conduct a Right to Work Check
Carrying out a right to work check involves a clear process that ensures compliance. If your worker is a non-UK citizen, you’ll need to follow the steps below:
1. Request the migrant worker’s share code and date of birth
Ask the migrant worker to provide their share code and date of birth. They can generate their share code by visiting this link.
2. Access the employer’s Right to Work service
Once you have the worker's share code and date of birth, go to the employer’s online Right to Work service.
3. Input the necessary details
Enter the share code (9 characters) and the worker’s date of birth, then click “Continue” to retrieve the worker’s Right to Work details.
4. Review the worker’s status
Carefully review the worker’s status, noting any restrictions, and ensure the photograph matches the worker’s current appearance.
5. Download and save a PDF copy
After reviewing, click “Download a PDF” to save a copy of the completed Right to Work Check.
6. Verify and record
The Right to Work Check should include the worker’s name, photograph, your company name, and the date the check was completed. Ensure that you retain this for your records as proof of compliance.
For a more detailed breakdown of this process, check the official Home Office guidance, which is kept up to date as the rules change.
Automate Home Office Audits with Borderless
The Borderless platform provides a centralized system for all sponsorships, automating reminders for key tasks and ensuring best practices across your organization, simplifying audit preparation and ongoing compliance.
What Happens If an Employee Fails a Right to Work Check?
If an employee fails a right to work check, employers must take immediate action to avoid liability:
- You should not proceed with the hiring process.
- Inform the employee that they are not eligible to work in the UK.
- In cases where checks have already been completed but the employee's eligibility changes (such as visa expiration), employers must terminate employment in line with immigration laws.
Neglecting to carry out proper checks could result in hefty fines, as well as damage to your company’s reputation. For more guidance on sponsor licence duties and compliance, visit our post on sponsor licence compliance.
Common Mistakes Employers Make During Right to Work Checks
Despite the clear legal requirements, many employers make mistakes during the right to work checks. These include:
- Accepting expired documents: Employers must only accept documents that are current and valid.
- Failing to conduct repeat checks for limited-right-to-work employees: For those with time-limited work permissions, employers must conduct follow-up checks before the right to work expires.
- Not maintaining proper records: It’s crucial to retain copies of the right to work check documents for the duration of employment and two years after.
By avoiding these common pitfalls, employers can stay compliant and reduce the risk of penalties.
Right to Work Check Update: Brexit and EU Citizens
Since the UK left the European Union, new rules have been introduced for EU, EEA, and Swiss citizens working in the UK. As of July 2021, employers must ensure these workers have valid status under the EU Settlement Scheme or other applicable visas.
The Skilled Worker Visa and Health and Care Worker Visa are popular routes for many post-Brexit applicants.
Conclusion
Conducting right to work checks is a fundamental step in complying with UK immigration laws. Ensuring that you perform checks correctly, store documents securely, and stay updated on legislative changes will help protect your business. If you're unsure about compliance or need help managing right to work checks, feel free to get in touch.
For more information on navigating the complexities of the UK's immigration rules, explore our post on the Sponsor Licence Application and SMS compliance.
FAQs About Right to Work Checks
Q: What happens if I employ someone without running a check?
A: You lose your statutory excuse, which is the protection a compliant check gives you. Without it, the civil penalty is £45,000 per worker for a first breach within a three-year period, and £60,000 per worker for a repeat breach. Because it is charged per worker, an employer with several people in scope can face a bill well into six figures. A 30% reduction is available on a first breach if you pay within 21 days.
Q: How long do I need to retain right-to-work documents?
A: Employers must retain right-to-work check records for the duration of the employee's employment and two years after they leave.
Q: Can I use copies of documents instead of originals?
A: Yes, online checks and photocopies are acceptable, as long as you keep records and review the documents for authenticity.
Q: What if I make a mistake during the right to work check?
A: If a genuine mistake is made but you’ve acted diligently, you may avoid penalties. However, you should promptly correct any issues.
