Right to work and your responsibilities as an employer
Originally published: August 2017 | Last reviewed: August 2017
As an employer, you must check that any potential new hire has the legal right to work in the country.
A person’s legal status in the country may be unclear. If they can show a valid U.K., European Union, European Economic Area (EEA) or Swiss passport or National Identity Card, confirming their right to work here will be a straightforward process. (For updates to the status of EU nationals following Brexit, keep an eye on the GOV.UK page Status of EU citizens in the UK: what you need to know.)
In other cases, the process may require a bit more time and attention.
But if you don't carry out the required checks for someone who's later found to be working illegally, you'll face a hefty fine — not to mention reputation damage and potential exclusion from entering into public contracts. Knowingly employing an illegal worker carries even graver penalties.
Offer fair consideration to all candidates
Given the risks of employing an illegal worker, you might be tempted to not even consider applications from foreign candidates — but this would go against the Equality Act and could lead to claims of discrimination.
You can, however, state on a job advert that your applicant must have the legal right to work in the U.K. and that you'll require proof of this as a condition of employment.
Once you've made an offer, you then need to give your future employee adequate opportunity to provide proof of their right to work. You'll have to keep the job offer open while waiting for proof — though if you're recruiting urgently to fill a role, you're not obliged to wait indefinitely.
Conduct checks correctly
Before you offer an employment contract, you’ll need to carry out right to work checks. To cover yourself, do this for every candidate — even for British nationals and staff recruited through an agency. (Even if contract staff are employed by an agency, it's good practice to carry out the checks yourself.) If you’re unsure of anything, check with the Home Office.
To complete a check:
- Ask to see the applicant's original documents, referring to the Government’s acceptable right to work documents
- Check those documents are valid in the presence of the applicant
- Make and keep copies of the documents, recording the date on which you made the check
That sounds simple enough — but checking the documents requires more than a quick glance. You're expected to verify:
- Authenticity of the documents. Make sure the documents are genuine, original and unchanged, and that they belong to the person who's given them to you. Photos across all documents should look like the applicant. If two documents give different names, the applicant must produce supporting documents to explain why (such as a marriage certificate).
- Dates. This includes a consistent birth date across all documents, verification of dates for the applicant's right to work in the U.K. and, for students, evidence of study and vacation times.
- Permission to do the type of work you're offering. This includes any limit to the number of hours the candidate is permitted to work, which applies especially to workers from outside the EEA on a student visa.
In some cases, you might need to ask the Home Office to check a potential employee's immigration status.
Copying documents requires care, too. Be sure to make copies that can't be altered (such as physical photocopies). For passports, copy any page with the expiry date and the applicant's details (such as nationality, date of birth and photograph) and endorsements (such as a work visa). For biometric residence permits and cards, copy both sides. For all other documents, make a complete copy. Finally, record the date the copies were made and sign the documents to confirm you have seen the originals.
You must keep copies while the employee works for you, and for two years afterwards. That said, make sure you follow data protection laws — such as retaining only necessary information and for no longer than two years after the employee stops working for you.
Understand work permits
For a candidate on a work permit, you should offer the role under the same conditions as you would for another candidate (rather than offering a limited duration contract), to ensure there are no discrimination issues.
However, the contract will always be dependent on eligibility to work in the U.K., so if an employee is unable to renew an expired visa, their work contract may become void.
In some cases, the employee may apply for permanent residency or citizenship (through marriage or other means). Otherwise, the employer could offer sponsorship which would allow them to stay in the U.K. for as long as they were still employed by that same employer. Individuals under a general tier 2 visa can also apply to extend their visa by up to five more years (as long as it doesn’t go over six years in total).
Understand how the law applies to volunteers
Those legally classed as volunteers don't need to prove their legal right to work in the U.K. Be careful, though. Those doing what the law classes as "unpaid work" still must have the right to work, since they're considered workers — not volunteers.
Legal firm Bates Wells Braithwaite reports that in one recent case, a student on a student visa that prohibited employment was arrested and sent out of the country for working 20 hours a week, unpaid, for a U.K. company.
To be considered genuinely volunteering (and not doing unpaid work):
- There should be no payment, including benefits in kind, other than reasonable travel and meal expenses (and not a flat rate, but the costs actually incurred)
- There should be no contractual obligations on the worker
- The service shouldn't be a substitute for a role that a salaried worker would normally take on
Bates Wells Braithwaite advises that organizations conduct right to work checks on all potential employees, including any unpaid workers who could be classed as a "voluntary worker.” Unpaid voluntary workers from outside the EEA may be hired under a tier 5 visa for charity workers.
Seek advice for employing overseas
If you're recruiting staff who'll be based at an office overseas, check the laws in the destination country. If possible, consult a local legal or HR advisor.
This article was produced with employment law expertise from Work LDN, a London-based company that provides human resources outsourcing services and specialist recruitment.
Chartered Institute of Personnel and Development (CIPD): FAQs on checking employees' right to work in the UK by Tijen Ahmet (2014)
Bates Wells Braithwaite: Immigration and employment insight: illegal working (2015)