There have been some changes to the requirements for employers to check a worker or employee’s right to work in the UK. Including changes to the List A and List B acceptable documents.
- List A contains the range of documents you may accept for a person who has a continuous right to work in the UK (including British and Irish citizens). If you conduct the right to work checks correctly before employment begins, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any further checks on this individual.
- List B contains a range of documents you may accept for a person who has a temporary right to work in the UK. If you conduct the right to work checks correctly, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse.
A statutory excuse is an employer’s defence against a civil penalty. In order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally, employers must do one of the following before the employee commences employment:
- a manual right to work check
- a right to work check using IDVT via the services of an IDSP
- a Home Office online right to work check https://www.gov.uk/employee-immigration-employment-status You only need to use this if you cannot:
- check the applicant’s right to work online using their share code or
- check the applicant’s original documents
Steps you must take to conduct a manual document-based right to work check:
- OBTAIN – Obtain the original documents from either List A or List B
- CHECK – You must check that the documents are genuine and that the person presenting them is the prospective or existing employee, the rightful holder and allowed to do the type of work you are offering. You must check that:
- photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation;
- expiry dates for permission to be in the UK have not passed;
- any work restrictions to determine if they are allowed to do the type of work on offer (for students who have limited permission to work during term-times, you must also obtain, copy and retain details of their academic term and vacation times covering the duration of their period of study in the UK for which they will be employed);
- the documents are genuine, have not been tampered with and belong to the holder; and
- the reasons for any difference in names across documents can be explained by providing evidence (for example, original marriage certificate, divorce decree absolute, deed poll). These supporting documents must also be photocopied and a copy retained.
- COPY – You must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy. You must also retain a secure record of the date on which you made the check i.e. write on the copy “check carried out on [DATE]” . Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check. You must keep a record of every document you have checked, you must make a declaration of the date on which it was checked. This can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a jpeg or pdf document. All copies of documents taken should be kept securely for the duration of the worker’s employment and for two years afterwards. The copy must then be securely destroyed. You must copy and retain copies of:
- Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
- All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card.
Checking the validity of documents
When you are checking the validity of the documents, you should ensure that you do this in the presence of the holder. This can be a physical presence in person or via a live video link. In both cases you must be in physical possession of the original documents. For example, an individual may choose to send their documents to you by post to enable you to conduct the check with them via live video link. You may not rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document.
The responsibility for checking the document is yours. Whilst it may be delegated to your members of staff (this includes agency workers engaged by you and working under your control), you will remain liable for the penalty in the event the individual is found to be working illegally and the prescribed check has not been correctly carried out. You may not delegate this responsibility to a third party where you are carrying out a manual check of original documents.
Whilst you may use a third party to provide support in terms of technical knowledge or specialised equipment to prevent the employment of illegal workers, the responsibility for performing the check (in order to obtain a statutory excuse from a civil penalty) will remain with you as the employer.
If you are given a false document, you will only be liable for a civil penalty if it is reasonably apparent that it is false. This means that a person who is untrained in the identification of false documents, examining it carefully, but without the use of technological aids could reasonably be expected to realise that the document in question is not genuine.
You will not obtain a statutory excuse if:
- it is reasonably apparent that the person presenting the document is not the person referred to in that document, even if the document itself is genuine.
- you know that the individual is not permitted to undertake the work in question; or
- you know that the documents are false or do not rightfully belong to the holder
You can use the Government’s online interactive tool to check if someone can work in the UK https://www.gov.uk/legal-right-work-uk
From 6 April 2022, employers can use Identity Document Validation Technology (IDVT) via the services of an IDSP to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).
Digital identity verification conducted by IDSPs is the process of obtaining evidence of the prospective employee’s identity, checking that it is valid and belongs to the person who is claiming it.
If you use the services of an IDSP for digital identity verification, holders of valid British or Irish passports (or Irish passport cards) can demonstrate their right to work using this method. This will provide you with a continuous statutory excuse. It is your responsibility to obtain the IDVT check from the IDSP. You will only have a statutory excuse if you reasonably believe that the IDSP has carried out their checks in accordance with this guidance.
You must not treat less favourably those who do not hold a valid passport, or do not wish to prove their identity using an IDSP. You must provide individuals with other ways to prove their right to work and should carry out a manual document-based right to work check in these circumstances.
You may be thinking that all sounds like too much bother, or so what? So, let’s make it real you could face a fine of up to £20k for employing illegal workers! The way to ensure that doesn’t happen is to create the statutory excuse by undertaking the right to work checks above.
Remember, you must make sure that you do not discriminate, even accidentally. Treat everyone equally and make sure that you to check everyone before they commence employment with you. Remember, it is your responsibility to ensure the validity of the checks and that responsibility cannot be delegated to anyone else even if they are undertaking the physical checks on your behalf.
Our support and advice
We are always happy to debate the pros/cons, dos/don’ts with you so please do talk to us if we can help in any way, we are here to support you.
Please note, this briefing is accurate at the time of writing, it is not intended to replace advice so please do call us if you have any queries.
