Right to Work Checks – What you need to know

What are right to work checks?

As part of the onboarding process right to work checks are a vital part of ensuring businesses are compliant with the law. So, what are right to work checks? They are checks employers carry out with new staff members to ensure they have legal authority to work in the country where they are to be employed. They should also be carried out throughout employment to ensure their right to work is still valid if they do not have a permanent right to work status.

What documentation is considered as evidence of right to work?

There is a useful document on the government website which details what evidence is required. An employer’s guide to right to work checks: 6 April 2022 (accessible version) – GOV.UK (www.gov.uk). If the employee is from the UK, the right to work would be their valid UK passport and a document that details their national insurance number. This will differ for foreign employees and will usually require evidence of a visa; employers should keep in mind that employees from the EU may be part of the EU settlement scheme and should ask for evidence of this. It is important that all employees are treated the same no matter where they are from to avoid claims of discrimination. Right to work checks should be completed for all employees. Employers should then also carry out ongoing checks on their employees’ right to work, to make sure their visas or passports are in date. If an employee is waiting for confirmation of their visa/ national insurance number, documentation from government bodies evidencing they have applied can be used in the interim.

How should this be stored?

It is important to note that for all right to work checks, employers should sign and date a copy of the right to work documents to say they have seen the original. This should then be clearly labelled and securely stored on the employees’ personal file. Any updated documentation should also follow the same process.

What if an employee is unable to provide appropriate right to work?

It is a criminal offence to employ/ pay individuals who do not have appropriate right to work and so is vital employers keep on top of this. If employees are unable to provide accurate right to work, after a grace period to gain this, they should either have their offer of employment revoked or their employment terminated if they are unable to evidence that it will be obtained in a reasonable amount of time.

Changes that took effect from 1^st October 2022

During the pandemic there were changes made to right to work checks to allow employers to check right to work remotely. The changes allowed employers to check right to work by arranging a video call with the employee and checking their scanned documents, if they were unable to check in person. As of 1^st October 2022, these changes are no longer valid. Checks will now either need to be in person, or by appointing an Identification Service Provider (“IDSP”). The IDSP will then use Identification Document Verification Technology (“IDVT”) to check the passport of the British & Irish national on behalf of employers. If the employee does not have a passport, then you must see their documentation in person. Please be aware that this could be carried out before the first day of employment, such as at a second stage interview. If the applicant is outside of the UK and Ireland you can use the government checking service, which will require a share code that the employee will have been issued with. View a job applicant’s right to work details – GOV.UK (www.gov.uk).

If you have any queries about the right to work checks process or any questions about your HR & Employment Law processes please do not hesitate to get in contact with or a member of our HR & Employment Law Team.