- Do employers need to carry out right to work checks?
Whilst there is no legal duty to carry out such checks (unless you are a sponsor licence holder), employers are nevertheless strongly advised to carry out such checks. Right to Work checks should be conducted on all prospective employees (and existing employees) irrespective of their nationality.
Where an employer fails to comply with this duty they may become liable for a civil penalty. The legislation which details this is the Immigration, Asylum and Nationality Act 2006. Right to work checks enable an employer to benefit from the protection of a ‘statutory excuse’ in order to avoid a civil penalty for an illegal working offence. A ‘Statutory Excuse’ is where the employer conducts the Right to work check by carrying out a document check to confirm that the prospective employee has the right to work in the UK. As such the purpose of the right to work check is to obtain a statutory excuse against illegal working, to reduce any liability for a civil penalty for employers.
Where staff transfer under the Transfer of Undertakings (Protection of Employment) (TUPE) regulations, right to work checks become the responsibility of the transferee. As such the Transferee must ensure that they can benefit from the statutory excuse for each employee transferred under TUPE.The Home Office guidance is that 60 days grace period us given from the date of TUPE for the checks to be undertaken.
- How do I conduct the check?
When hiring a new employee, employers should take steps to ensure that they have the right to work in the UK. This service, launched by the government in April 2018, allows employers to check a potential employee’s right to work in the UK when they are not able to provide documents such as their passport, or the potential employee holds a biometric residence permit or card.
Employees also benefit from the service as they are able to demonstrate that they are lawfully allowed to work in the UK. In addition, employers can only access a potential employee’s record if the employee chooses to share this with them.
From 28 January the service has been streamlined in order to make it easier for employers. Employers are now able to just rely on an online check in order to conduct a right to work check and avoid a penalty for employing illegal workers.
The recent changes also impact EU workers applying under the EU settlement scheme. Currently EU nationals are able to use their passports as evidence of their right to work in the UK and indeed this will continue to be the case during the transition period. Alternatively, once submitting an application for settled status under the scheme, which is now open to most EEA nationals, an employee can use the service to share their right to work with their employer. If however, an EU national is applying for pre settled status, they are still required to provide their passport to evidence that they can legally work in the UK.