Right to work checklist

Don’t risk a £60,000 civil penalty for employing an illegal worker. Check all new employees’ right to work in the UK before they start work for you using our checklist, record the date of your check and either take copies of the relevant documents if you carried out a manual check, or keep a clear copy of the response/identity check output if you used the Home Office online right to work checking service or you used an Identity Service Provider (IDSP) to conduct an Identity Document Validation Technology (IDVT) check.

An expensive oversight

The maximum civil penalty for employing illegal workers as a result of negligent recruitment and employment practices is now £60,000 per illegal worker (£45,000 per illegal worker for a first breach within the last three years). So, it’s essential that you conduct right to work checks on all new employees before they start working for you, even if they claim to be British. Indeed, being selective in your checks can, of itself, amount to race discrimination. If you do conduct the prescribed right to work checks, you’ll have a statutory excuse to avoid payment of the civil penalty. In addition to the civil penalty, it’s a criminal offence for you to employ an illegal worker where either you know or have reasonable cause to believe that they are disqualified from employment by reason of their immigration status. Conviction on indictment carries a maximum five-year prison sentence and/or an unlimited fine and the statutory excuse won’t apply here.

A three-step process

There are three steps you need to go through if you are carrying out a manual right to work check:

1. Obtain acceptable original documents showing a right to work in the UK - the List A and List B documents.
2. Check the validity of the documents in the presence of the holder (either in person or via a live video link) - you must satisfy yourself that the documents are genuine and that the person presenting them is the prospective employee and allowed to do the type of work you are offering. You must also check that the photograph and date of birth are consistent across documents and with the person’s appearance.
3. Take and retain a clear copy of the documents in a format which cannot be altered and keep a contemporaneous record of the date the check was made.

Our Right to Work Checklist guides you through these three steps, advising you what you need to do at each stage and enabling you to record your findings. Once completed, you can place it on the employee’s personnel file, along with the copied documents. Keep them for the duration of employment and for two years after employment has ceased. Alternatively, in many cases, you can conduct an online right to work check using the Home Office online right to work checking service and our checklist also covers what you need to do at each stage there. You will need to conduct an online check on those EEA and Swiss citizens who have settled or pre-settled status under the EU Settlement Scheme, as they haven’t been issued with physical documents, and you must also conduct an online check on those of any nationality who hold a biometric residence permit, biometric residence card or frontier worker permit. As a third option, you can instruct an IDSP who will use IDVT to conduct a digital right to work check on British and Irish citizens who hold a valid passport (or valid Irish passport card). Retain a clear copy of the response/identity check output provided by the online or IDVT right to work check for the duration of employment and for two years afterwards.

The statutory excuse

You need to be aware of the type of statutory excuse you have and for how long it’s valid – for manual document checks, this will depend on whether the worker supplied you with List A or List B documents. Documents provided from List A establish that the person has a permanent right to live and work in the UK and the excuse is valid for the full duration of their employment. List B contains the range of documents which may be accepted for checking purposes for an individual who only has a temporary right to work in the UK. With List B documents, you will only establish a time-limited statutory excuse and you will be required to carry out a follow-up right to work check. Our checklist therefore enables you to record when you need to carry out that follow-up check. In the case of an online right to work check, the response will confirm the period for which the employee is permitted to carry out the work in question and hence whether you only have a time-limited statutory excuse. In the case of an IDVT check, British and Irish citizens have a permanent entitlement to live and work in the UK.