Employer Right to Work Checks- FAQs
And here it is! Our third and final instalment of our Right to Work Check email mini-series. We hope that you have found the information useful to date and that you have perhaps learned something along the way.
In this final instalment, we will look at some FAQs but if you have a question of your own, then do not hesitate to contact Charlotte direct at charlotte@howarths-uk.com who will be more than happy to have a chat with you.
What are the penalties for getting the Right to Work obligation wrong?
Employer Right to Work Checks are a fundamental legal requirement for all UK employers. Right to Work Checks must be carried out on all job applicants prior to employment starting and the penalties for not doing so can be significant. Failure to perform Right to Work checks correctly could result in unwanted Home Office scrutiny and serious ramifications, including:
- Civil penalty for illegal working – fine for up to £20,000 per employee
- Criminal prosecution
- Enforced debt action
- County Court judgment
- Sponsor Licence suspension or revocation
- Adverse impact on the ability to obtain future credit
- Disqualification of company directors
- Inclusion on the Home Office’s civil penalty offender list
- Bad press, reputational harm and a resulting hit on profits
- Business forced to cease trading
How long does a Right to Work check take?
Right to Work checks can vary by employer but would usually take between one and four weeks.
When should I start the Right to Work checking process?
The sooner the better! Employers can start the process as early as the job application/first interview stage.
What can you use as proof of right to work?
The proof of ID will depend on which of the Home Office lists apply. List A differs from List B and an individual’s own personal circumstances will affect the documentation which their employer will be obliged to check.
Can I continue rely on an EU workers passport as proof of right to work in the UK?
Following the end of free movement, in most circumstances an EU worker will now need to show proof of a successful EUSS application or a visa granting them entry and the right to work in the UK.
What is the Employer Checking Service?
The Employer Checking Service is a free online service from the Home Office designed to enable employers to meet their duty to conduct right to work checks on employees.
Under the new Code of Practice which was introduced earlier this year, employers can now use the online checking service as the single method of verifying an employee’s permission to work where the individual has:
- A biometric residence permit or biometric residence card or
- Settled status under the EU Settlement Scheme
An employer will need an individual’s consent to perform online checks. Where consent cannot be obtained, a document check should be carried out.
Can the Employer Checking Service be used for anything else?
Yes, the service can also be used to check an employee’s immigration status in any of the following circumstances:
- The employee cannot show you their documents because of an outstanding appeal, review or application with the Home Office
- The employee has a Certificate of Application less than six months old
- The employee has an Application Registration Card
- The employee is a Commonwealth citizen who started living in the UK prior to 1988
What is a Right to Work Share code?
The share code is given to an individual to pass on to their prospective employer to conduct an online Right to Work check using the Home Office employer checking service.
Can I carry out right to work checks remotely?
Yes, in response to the Covid-19 pandemic temporary adjustments were made to the process to allow for remote checking.
Until at least 5 April 2022 employers can carry out remote right to work checks. Checks can be carried out over video calls and job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals.
What do I do if I find out an employee doesn’t have a right to work in the UK?
Take appropriate legal advice as soon as you can. Employment will need terminating in all likelihood however, the legal considerations to be had on termination are complex and will need careful navigation to avoid risks of unfair dismissal, unlawful discrimination and breaches of immigration provisions.
How can Howarths help?
Howarths brings together expertise in UK immigration law, employment and HR and we are working with the SME market to ensure that they are compliant with these fundamental employment checks. We offer a full Right to Work consultancy service to provide guidance to help you to meet your legal duties. Our service includes (amongst other things!) being able to review your existing Right to Work checking and monitoring policies and processes and advise on areas of risk- providing recommendations on areas of improvement. We offer an audit service to ensure that your personnel records are up to date and can provide Right to Work training for your HR teams, line managers and supervisors.
If you would like to learn more about your legal obligations in respect of right to work checking and immigration compliant recruitment and onboarding then please do not hesitate to contact Charlotte direct. Training enquiries can be directed to justine@howarths-uk.com
We hope that you have enjoyed this mini-series! If you have (or if you haven’t!) please do let us know.
Author: Charlotte Geesin, Legal Director
