All employers must prevent people with no legal right to be in the UK from working in their organisation.
To this end, employers must carry out checks to ensure their employees have the right to live and work in the UK. For small businesses, ensuring correct and ongoing Right to Work (RTW) checks are conducted can be challenging.
To help you we have prepared a comprehensive guide to answer all your questions about RTW checks.
What is a statutory excuse?
If you conduct compliant RTW checks, you will have a statutory excuse against a civil penalty (fine) should one of your employees be found to be ineligible to work in the UK because of their immigration status.
The government guidance states:
“… if we find that you have employed someone who does not have the right to do the work in question, but you have correctly conducted RTW checks as required, you will not receive a civil penalty for that illegal worker.”
If you know or have reasonable cause to believe that you are employing an illegal worker the penalties can be harsh.
Without a statutory excuse, you may face up to five years imprisonment and/or an unlimited fine. The Home Office can also temporarily close your business if subsequent RTW breaches occur.
Because of the stiff penalties for employing illegal workers, you must carry out compliant RTW checks in the manner set out below.
Right to Work checklist
To secure a statutory excuse you must perform the below steps in order.
- Obtain the employee's original documents as prescribed in Annex A of the Home Office guidance, for example, the employee’s passport, Settled Status document, or Indefinite Leave to Remain vignette (this will be found inside the employee’s passport)
- Check (in the presence of the employee) that the documents relate to them and are original, unaltered, and valid
- Copy the documents and record the date of the check and date for follow-up checks and retain copies of the documents securely (this can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a JPEG or a PDF file)
Online Right to Work check
In certain cases, you can check a person’s right to work online.
Migrant workers can prove their RTW in the UK by sharing with you a ‘share code’ made up of nine alphanumeric characters. To create a ‘share code’ a migrant worker will need their:
- Biometric Residence Permit (BRP) number
- Biometric Residence Card (BRC) number
- Passport or National Identity card
If the worker can provide you with a share code you can check their RTW status online.
Free employment contract templates
Why is it important to retain records of the RTW check?
To ensure you retain a statutory excuse you should keep the copies of all documents related to any RTW checks securely for the duration of the migrant worker’s employment and for a further two years after they stop working for you.
Please note, you need to be able to produce these document copies quickly if you are requested to show them to demonstrate that you have performed a RTW check and therefore retain a statutory excuse. Therefore, ensure they are filed carefully and at least two people in the organisation know how to access them.
It is also vital to record the date on which the proof of Right to Work check was conducted. This date may be written on the document copy as follows: ‘the date on which this RTW check was made: [insert date]’ or a manual or digital record may be made at the time you conduct and copy the documents which include this information.
Get legal assistance from LawBite
Right to Work checks are an essential part of legislative compliance for all employers. If you have any questions about the process or have received notice of a civil penalty, please contact our team of employment lawyers and we will assist you. To book a free 15 minute consultation, just click ‘Get started’ below.
Additional resources
- Understanding the increase in National Insurance contributions
- The National Minimum Wage in 2022
- What is a contract of employment
- What are the terms and conditions of a contract of employment
- Registering as an employer - what you need to know
- Understanding expenses and benefits
- What is a Skilled Worker Visa?
