The Formal Introduction
Prevent illegal working now! Right to work document checking is often a complex and daunting task. But as a starting point to completing checks with confidence, there are five basic elements all UK employers should be aware of.
1. The Legal Bit
It is illegal to employ someone who does not have the right to work in the UK. Under the Asylum and Immigration Act 1996 (known as the 1996 Act), it is the employer’s legal duty to prevent illegal working in the UK by checking right to work documents for all employees before they are employed. This duty is also extended to agency workers paid directly by the employer.
An employer found to be knowingly employing illegal workers may face an unlimited fine per worker and may also be prosecuted. However, carrying out correct right to work checks will protect the employer and may, depending on the circumstances, provide a legal excuse to dispute any fines.
2. The Who, When, What & How?
Who – The employer must check right to work documents. This may be the recruiting manager, HR or internal recruiter.
When – The document check should form part of the recruitment process and should be conducted before offering a position to a candidate.
What – Employers must take reasonable steps to check that the document is genuine and that the person presenting it is the rightful holder and allowed to work in the UK.
How – The employer must take a copy of right to work documents from either list A or B as per the UK Border Agency guidelines and hold a signed, dated and verified copy on file.
3. The List A or B Dilemma?
It is essential for an employer to understand what constitutes an acceptable right to work document. It is also vital they provide comprehensive training to all involved in the recruitment process. to understand what is acceptable.
Acceptable right to work documentation will fall into either list A or B:
List A – These documents show that the individual has no restrictions to their employment in the UK; the documents are valid for the duration of their employment.
List B – These documents show that the individual may have restrictions to their employment in the UK. Repeat checks of these documents must be carried out once every 12 months. The original documents should be checked in person and copied, verified and held on file. It is the employer’s responsibility to carry out these repeat checks.
The UK Border Agency provides a comprehensive employer guidance document and checklist outlining a list of acceptable right to work documents under list A or B. Please click on the link below to find out more:
4. The Devil is in the Detail
Carrying out correct right to work checks is crucial. It is important for an employer to understand what details to check and hold, and how to do this. For consistency, it is advisable for an employer to provide training to all involved in the recruitment process.
Checks should be completed as follows:
– Original documents must be requested and checked by the recruiting manager, in person, at the interview stage.
– If documents are not checked at interview stage, the recruiting manager should request that the candidate provides the original documents, in person, prior to their start date to be verified.
– Any document containing a photograph should be checked to ensure it is a true representation of the individual.
– Any documents stating a date of birth should be checked to ensure the date is consistent across documents and matches up with the appearance of the individual.
– Document expiry dates should be checked, specifically if the individual has limited leave to remain in the UK. Should the individual only have an expired passport or travel document, care should be taken when checking and verifying these to ensure they are an acceptable document.
– UK government endorsements such as stamps, stickers and visas should be checked to ensure they are acceptable as part of a right to work document check.
– The document checker should be satisfied the original documents are genuine and have not been tampered with.
– The document checker should ask for further documents if those provided are not satisfactory, or, for further explanation if the documents provided have different names, for example, on their marriage certificate or birth certificate.
5. The Real Time Information Reporting Requirement
To make the Pay as You Earn (PAYE) system more efficient, the HMRC introduced Real Time Information, or RTI, as it was known from 6th April 2013. If you require any further details, please visit the HMRC website to read more: www.hmrc.gov.uk
As part of the RTI legislation, employers need to ensure their payroll records reflect the right to work documentation held for their employees on file as follows:
Employee Name – Payroll records must hold the full legal name based their right to work documents for the employee.
Date Of Birth – Payroll record dates should match the right to work documentation.
Passport Details – If a passport has been received as part of checking right to work documents, the passport number should be provided.
PlusHR are team of HR professionals offering sound advice on all HR areas, based on genuine expertise. We also have the skills to help employers automate key HR processes through the use of technology. Want to know more and set up a free trial find out more here. Read more on what you need to ensure you are legally compliant here.