As part of our series of articles on recruitment this month, here we explore issues which can arise when checking an applicant’s right to work.

Civil penalties up to £20,000 can be imposed on employers who employ someone who does not have the right to live and work in the United Kingdom. Given the risk of such a large fine, it is advisable to make the appropriate checks the right to work in advance of the prospective employee starting work and certainly no later than day 1 of their employment.  Employers who carry out a “right to work check” in compliance with the current Home Office requirements will have a statutory defence for employing someone who turns out not to have these rights.  Therefore, it is important for employers to ensure that they are carrying out these checks properly. Employers should check the employee’s passport to establish that the passport bears their likeness, that it has not expired and that it gives them the right to work in the UK. If the employee is the holder of a British passport with no restriction on their right to work, this should be noted as evidence of having met the obligation to check. A number of other nationals, such as citizens of the Republic of Ireland, also enjoy an unlimited right to work, but you should check if you are in any doubt. There have also been several recent changes to the checking process which we set out below.

Previously employers had the option of carrying out either a manual (in person) or virtual right to work check. Although such checks remain possible in some circumstances, as of 6 April 2022 employers must carry out a “Home Office online right to work check” for all candidates who have the following documents:

  • Biometric Residence Card (BRC),
  • Biometric Residence Permit (BRP)
  • Frontier Worker Permit (FWP) holders; and
  • Some eVisa holders.

This is part of a general move towards digitising these checks. Other forms of identity documents may gradually be added to this list. Candidates can share a code with the employer via a government portal which gives them the right to access the information they need to carry out the check.  The portal will confirm whether the individual has the right to work in the UK and do the work being offered by the employer.  The employer must then check that the photograph on the online check matches the individual presenting themselves for work.  The advantage to this option is that the employer does not need to see or check the candidate’s original documents. Instead, they can rely on the information provided by the Home Office.

Also from 6 April 2022, employers can outsource the right to work checking process to a third party but this is currently limited to British and Irish nationals. These third parties are known as “Identity Service Providers” (IDSPs) and any employer wishing to rely on them for these checks must make sure that they are certified to carry them out.  There is currently only one provider listed as certified in the government’s guidance on IDSPs but the list is likely to expand.

A virtual system for checking candidates’ documents by employers was introduced during the pandemic and has been extended as a government-approved option to 30 September 2022.  This requires an employer to check a scan or photo of the candidate’s original documents against a live showing of the originals on a video call.

Manual document checks can still be carried out, except for those people who have documents which must be checked via the Home Office online right to work check portal (listed above).  The process requires the employer to obtain the originals of documents which are included on the Home Office’s approved lists, check the photographs, names, expiry dates, whether there are any restrictions and whether the document appears genuine, and obtain clear copies of each document.

If an individual has an outstanding application for the right to work, an administrative review or appeal ongoing, or if their immigration status requires verification by the Home Office, employers can use the Home Office’s Employer Checking Service to support their checks.

Detailed information about all of the right to work checks can be found in the Home Office’s current guidance for employers. The guidance also explains how employers can carry them out in order to obtain the benefit of the statutory defence, if they later find that they have employed someone without the right to work in the UK,

Avoiding discrimination when carrying out right to work checks

Carrying out right to work checks necessarily requires employers to check an individual’s nationality. It can also entail an employer discovering an individual’s ethnic or national origins, colour and racial group.  These categories of personal information can fall within the protected characteristic of race within the meaning of the Equality Act 2010 and employers must therefore be careful not to discriminate against candidates when engaging with these issues as part of the checking process.

The government has recently acknowledged that issues of discrimination can cause particular issues during the right to work checking process and has produced a Code of practice for employers on this very topic.

Examples of discrimination which might arise during this process are:

  • Not interviewing someone from a certain nationality or ethnic group because it is assumed that they will not have the right to work in the UK;
  • Carrying out right to work checks for a Black employee but not for their White colleague;
  • Refusing to employ candidates with a time-limited right to work.

These are examples of direct discrimination, namely treating someone less favourably than another because of their race or nationality. There is no defence available for direct discrimination.

Applying a policy to everyone irrespective of their race or nationality is also discriminatory if it disadvantages a group of people who share a protected characteristic and disadvantages an individual within that group. This is known as indirect discrimination. An example which might arise during the right to work checking process would be requiring a candidate to have been resident in the UK for 5 years prior to starting employment. This will be indirectly discriminatory since some migrants who have the right to work will not have been resident in the UK for that period.

Time-limited right to work: Some job applicants may have a time-limited right to work in the UK. For example, a visa which expires within 2 years.  Provided the applicant can produce acceptable documents evidencing that right to work, employers should not treat these applicants less favourably than others. This prohibition also applies to protect individuals who are in the process of applying for an extension of their leave to remain or are in the midst of an administrative review or appeal. When such applications are made before an individual’s leave to remain expires, they continue to have the right work and an employer can safely employ them if they satisfy the right to work checks.

Practical steps employers can take to avoid discriminating against candidates during the checking process are:

  • Applying a consistent approach to checks carried out on all candidates;
  • Ensuring selection for a role is made on merit and suitability for the role and not on the basis of any protected characteristic; and
  • Avoiding making assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK.

A useful reminder – employers are obliged to carry out Home Office-compliant right to work checks, but they are not obliged to go further than that.  If, following the employer’s check, a job applicant has been unable to prove their right to work in the UK, the employer is not obliged to employ them.  They are, however, encourage to try to keep the job open for as long as possible to provide an applicant with the opportunity to satisfy the checks, but are not obliged to do so where the need to recruit someone is urgent.

This article is part of our recruitment mini-series. (Vetting Candidates, Offers of Employment & Avoiding Discrimination)

If you would like further advice tailored to your particular circumstances, please contact us.