Right to work checks: what HR needs to know

Following the end of temporary measures for right to work checks on 1 October, Jane Biddlecombe provides guidance for employers on how to do them properly

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It’s essential that all employers know how to conduct a right to work check on their potential employees. If an employer gets this wrong they are risking a civil penalty of up to £20,000 for employing an illegal worker.

Right to work checks must be conducted in relation to all potential employees, regardless of nationality or ethnic origin, before the employee starts work.

What is a right to work check?

Essentially, a right to work check requires an employer to either: obtain, check and copy a document from the list of approved documents to prove the potential employee’s right to work in the UK; or check their right to work status online.

The full list of approved documents can be found in the Employer’s Guide to Right to Work Checks.

Adjusted right to work check measures

Temporary adjusted right to work check measures have been in place since 30 March 2020 due to the pandemic. This has allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer has then been allowed to conduct a right to work check by checking the original documents via a video call and marking the copy ‘adjusted check undertaken on [insert date] due to Covid-19’.  

However, these adjusted right to work check measures came to an end on 30 September 2022. Therefore, since 1 October 2022, if employers wish to carry out a manual check of right to work documents, this will need to be done in person.

When the temporary Covid-19 measures were implemented, the Home Office said that follow-up checks on any employees who had had a Covid-19 adjusted right to work check would need to be carried out within eight weeks of the temporary measures ending. However, the Home Office has now confirmed that these retrospective checks will not be required. Employers will maintain a statutory defence against a civil penalty as long as they did a normal check or a Covid-19 adjusted check at the relevant time.

Right to work checks since 1 October 2022

In summary, since 1 October 2022, employers now have three options in relation to right to work checks:

  1. Carrying out a manual check. This involves meeting the potential employee in person, checking their original right to work document, copying it and marking the copy ‘right to work check undertaken on [Date]’.

  1. Where the potential employee is an overseas national with a biometric work or residence permit, these individuals’ right to work can only be checked online. They must provide their date of birth and a share code to the employer who will then be able carry out an online right to work check. Face-to-face manual right to work checks are no longer enough to establish a statutory defence against a civil penalty in relation to these individuals.

  1. Employers can use certified Identity Service Providers (IDSPs) to complete digital right to work checks for British and Irish citizens (as long as they hold a valid passport). This is an alternative to manual checks and the IDSPs will complete these digital right to work checks on behalf of employers using Identity Document Validation Technology. Given that there is a fee payable for this service, it is unclear yet whether employers will be inclined to use this option for right to work checks in the future.

Jane Biddlecombe is an associate at Paris Smith solicitors