Right to Work ChecksPosted in : Back to Basics on 23 October 2019
In the latest series of our Back to Basics series with A&L Goodbody, Associate in the Employment and Incentives team Andrew Spratt discusses Right to Work Checks.
Today I'm going to talk about an issue which cuts across both employment and immigration law, and that's the right to work checks.
Prevention of Illegal Working
Fundamentally, and regardless of whatever happens in Brexit, an employer has a duty to prevent illegal working. There are serious consequences for someone who gets this wrong, with a civil penalty of up to £20,000 per employee for someone who fails to carry out these checks, and even further, a criminal sanction of imprisonment or an unlimited fine for those who have the reasonable knowledge that they are employing someone who is working illegally.
To keep yourself right, you need to be making right to work checks. This is a relatively straightforward process. The first thing you need to do is to be able to see original documentation. That original documentation will be a passport, a driver's license, or a national ID - identification. You want to make sure that those documents are valid and to make sure that whoever it is is coming to work for you is the person who is on the documentation.
You don't have to be an expert on this, but you do need to be able to look at the information provided to you and to ensure that person is the person that they say that they are. If you see that a passport or a driver's license has been tampered, then that would be a red flag and would raise a concern for you. It's only a basic check, but it does have to be carried out.
Timing of Right To Work Checks
These checks need to be done before an employee comes to join you. Doing it five minutes before they're about to start their shift is the wrong time to be doing this. You should do it a number of weeks in advance before the employee comes to join you so that you can take these checks seriously.
All new hires should be checked, irrespective of where it appears, they may have come from or where their place of origin is. This keeps it fair for all employees so that we're not simply taking action against people who appear to be from a different country.
The third part is you need to copy and retain and date all of those documents, which you have looked at, to ensure that if it is ever queried, you're able to show that those checks were carried out in order to prevent anyone taking action against you.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.