Are your “right to work” checks adequate?
Recently, the Home Secretary confirmed that the penalty for employers employing illegal workers will be raised to up to £45,000 per illegal worker for a first breach (from £15,000) and up to £60,000 for repeat breaches (from £20,000). She has also announced that later this year the Government will begin consultation on what options there are to strengthen action against licensed businesses found to be employing illegal workers.
It is not yet clear when these proposals will come into effect. Nevertheless, this news has prompted employers to review right to work check processes. Below is a reminder:
Under the Immigration, Asylum and Nationality Act 2006, organisations are under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so.
- Right to work checks should be conducted before an individual is employed to ensure they are legally allowed to work in the UK.
- An essential part of right to work checks is record keeping. A record must be kept of every document that has been checked – such as passport or birth certificate, or right to work visa, or settlement scheme confirmation. This can be a hard copy or a scanned copy in a format which cannot be manually altered, such as a JPEG or PDF document. These should be kept securely for the duration of the person’s employment and for a further two years after, and stored in a way that they can be accessed quickly in the event that they are requested to demonstrate that right to work checks have been performed.
- It’s important to ensure no aspect of right to work checks has a discriminatory effect. To help employers with this, the Government has produced a Code of Practice.
The Code outlines that employers should:
- be consistent in how they conduct right to work checks with all applicants
- ensure job selections are made on the basis of suitability for the role
- ensure no applicants are discouraged or excluded because of known or
perceived protected characteristics (eg race).
The Code further highlights that employers should not:
- discriminate when conducting right to work checks
- only check the status of those who appear likely to be migrants
- make assumptions about a person’s right to work based on their colour, ethnic or national origins, nationality, accent or surname or the length of time they have been resident in the UK.
To avoid discrimination claims, all applicants should be treated equally at each stage of the recruitment process. Having a clear written recruitment and selection procedure can further support this.
If you feel that your right to work checks fall short of the requirements, why not contact 121 HR Solutions for assistance on 0800 9995 121.