UK employers are under a duty to prevent illegal working by ensuring that those that they employ have the right to work in the UK. Equally, employers are under a statutory duty not to discriminate against job applicants and workers when conducting the necessary right to work checks.
In this guide for employers, we look at how these two different obligations work together in practice, and what steps can be taken to avoid claims of unlawful discrimination when checking workers’ eligibility to work in UK under the illegal working regime.
Employer’s duty to check eligibility to work in the UK
Every employer has a responsibility to prevent illegal working by ensuring that those they employ, or continue to employ, have the right to work in the UK. This means that any prospective or existing worker must have a legal right to live in the UK and to do the work that the employer is offering. By conducting right to work checks in the prescribed manner, an employer can ensure that their new recruit, or existing employee, is not disqualified from working in the UK, or from doing the work in question, by reason of their immigration status.
By correctly carrying out right to work checks, this will provide an employer with a statutory excuse against any liability for a civil penalty if someone is found to be working illegally. In contrast, an employer who fails to conduct a proper check before employing someone whose immigration status does not entitle them to do the work on offer may be liable to pay a penalty of up to £20,000 per illegal worker. Equally, an employer who knowingly employs someone without the requisite immigration status may be committing a criminal offence.
Right to work checks must be undertaken on all prospective workers, as well as all existing workers where their permission to work in the UK is time-limited. This means that employers must conduct a follow-up check shortly before a worker’s leave is due to expire to be able to maintain a statutory excuse. Once permission to be in the UK has expired or been withdrawn, unless the worker has applied for an extension of their visa, it will be unlawful to continue to employ them.
How to conduct compliant Right to Work checks
Employers can discharge their duty to verify eligibility to work in UK in one of three ways:
- Using an Identity Service Provider (IDSP): employers can now rely on Identity Document Validation Technology (IDVT) using the services of an IDSP to complete the digital identity verification aspect of right to work checks for British and Irish citizens. It will not be a mandatory requirement to use an accredited provider, but the employer will only obtain a statutory excuse if they reasonably believe that the IDSP has correctly carried out the check.
- Using the online Right to Work Checking Service: this is a free Home Office service that will enable employers to electronically check whether someone is allowed to work in the UK and the nature of any restrictions on their right to do so. Employers can access this system on the ‘View a job applicant’s right to work details’ page on GOV.UK, using a share code provided by the worker to view that individual’s right to work record.
- Conducting a manual document check: for manual checks, the employer will need to obtain original documents from the migrant worker from either List A or List B (Groups 1 or 2) of acceptable documents found on GOV.UK. List A documents will evidence a permanent right to stay in the UK, while documents from List B will only show a time-limited right. In List B scenarios a follow-up check will be needed, either on expiry of the worker’s existing leave in respect of List B Group 1 documents, or 6 months from the date specified in the Home Office Positive Verification Notice in respect of List B Group 2 documents.
The way that a person can evidence their right to work may vary depending on their nationality or immigration status. This means that it will not be possible to choose how to conduct right to work checks in all circumstances. The immigration status of some individuals will be held in digital format only, while others may not have an immigration status that can be checked online, where a manual check must be undertaken instead. Take advice if you are uncertain about the options.
Discrimination & Right to Work checks
The Equality Act 2010 prohibits discrimination on the basis of nine protected characteristics, both before and during employment.
In relation to right to work checks, race discrimination is typically the predominant risk, although the 2010 Act also affords jobs applicants and workers protection against discrimination in relation to age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, religion or belief, sex or sexual orientation.
There are two main forms of discrimination, direct and indirect. Direct discrimination is when a job applicant or worker is treated less favourably than other applicants and workers because either they possess a protected characteristic, the employer thinks they possess a protected characteristic (known as discrimination by perception) or they are connected to someone who possesses that protected characteristic (known as discrimination by association).
In contrast, indirect discrimination occurs where there is a provision, criterion or practice that applies in the same way to everyone irrespective of any protected characteristic, but disadvantages a group of people who share a particular characteristic. Even if any discriminatory effect of the policy or practice is unintentional, this will still be unlawful, unless the employer can show that it is a proportionate means of achieving a legitimate aim.
In almost all cases, except where there is a statutory exception, direct discrimination cannot be objectively justified as proportionate and necessary, or otherwise excused or defended. Examples of direct discrimination for which there is no statutory exception are rejecting all job applicants because they are not of British or another specified nationality, or refusing to consider any non-British job applicants. In the context of right to work checks, instances of direct discrimination might include not interviewing a candidate of a certain nationality because it is assumed that they will not have the right to work in the UK or carrying out right to work checks for a black candidate but not for their white counterpart.
An example of indirect discrimination in the context of the recruitment process and right to work checks would be to impose a requirement that all job applicants have a period of 5 years continuous residence in the UK. This is because some migrant workers who have the right to work in the UK will not have been continuously resident for that length of time.
Implications of unlawful discrimination
When checking eligibility to work in UK, there can be serious legal and practical implications in relation to unlawful discrimination. If the employer discriminates against someone during the course of the recruitment process or the lifecycle of employment, by reason of race or otherwise, they could find themselves defending a claim before the Employment Tribunal.
Anyone who believes that they have been directly or indirectly discriminated against by an employer because of either their race or any other protected characteristic, they may bring a claim for unlawful discrimination. If the claim is upheld by the Tribunal, the employer will usually be ordered to pay an award of damages, for which there is no upper limit.
By treating job applicants and workers unfairly, this can also impact recruitment and retention rates and, all too quickly, create a long-lasting negative employer brand.
Managing discrimination risks when checking eligibility to work in the UK
While employers are duty bound to conduct right to work checks to help prevent illegal working, there are a number of ways in which discriminatory practices can be avoided when checking eligibility to work in UK. This includes creating a consistent, transparent and fair recruitment process in which, among other things, right to work checks apply to all applicants at the same stage of this process, regardless of race, nationality or ethnicity.
Equally, it is important that the way in which follow-up checks are conducted is transparent and fair, where suitable policies and procedures must be put in place to carry out checks on those individuals whose right to work in the UK is time-limited.
The Home Office has recently published the ‘Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working’. This provides practical guidance on how to avoid unlawful discrimination when recruiting and employing individuals, with specific guidance on right to work checks. The code of practice applies to all employment commencing on or after 6 April 2022, and for follow-up checks carried out on or after this date.
All employers in England, Scotland, Wales and Northern Ireland must adhere to this code, where the content of this code can be taken into account by a Tribunal in determining whether an employer has unlawfully discriminated against a job applicant or worker.
Best practice advice for employers
When checking eligibility to work in UK, the following best practice advice can help employers to avoid falling foul of the law and being subject to Home Office enforcement action:
- Ensure that prospective workers understand that all employers are legally obligated to carry out right to work checks, for example, by explaining in writing that it is, by law, the organisation’s policy to require all applicants to prove their right to work
- Provide training to those staff responsible for conducting right to works checks both before and during employment to ensure that they do so in a non-discriminatory way, as the employer may be deemed responsible for the discriminatory acts of its employees
- Ensure that right to work checks are a standard part of the recruitment process, applicable to all job applicants at the same stage, regardless of race, nationality, or ethnic or national origins, rather than only checking the status of those who appear likely to be migrants
- Never make assumptions about an applicant’s right to work in the UK, or their immigration status, based on their race, ethnicity, nationality, skin colour, accent, surname or the length of time that they have been resident in the UK
- Inform all job applicants that they will need to supply original documents to confirm their right to work in the UK or, where appropriate, a share code for an online check
- Do not assume that if an applicant is unable to produce acceptable documents that they are working or living in the UK illegally, where they may have an outstanding immigration application, or an administrative review or appeal against a Home Office decision
- Advise job applicants who produce acceptable documents showing a time-limited right to work in the UK that a follow-up check will be needed and the reasons for this
- Do not treat any individual less favourably because they only have a time-limited right to work in the UK, where once a new recruit has established an initial and ongoing entitlement to work, they should not receive any less favourable terms and conditions of employment or otherwise be treated unfairly during the lifecycle of their employment
- Do not treat an applicant less favourably because that person refuses a right to work check via the new IDVT process or they simply do not have digital immigration status, and instead a manual check is required, or that they are only able to prove their right to work via the online process and cannot produce a hardcopy document to evidence their status
- Do not mandate how someone proves their right to work, providing every opportunity to enable them to prove their right to be in the UK and to undertake the work on offer.
In circumstances where a job applicant or worker is unable to produce acceptable documents or online immigration status to confirm their right to work in the UK, the employer can ask the Home Office to check that person’s status using the Employer Checking Service. Provided that individual has made an in-time application for permission to stay in the UK, any existing right to work will continue until that in-time application, or any review or appeal, has been determined. In such circumstances, the Home Office will issue a Positive Verification Notice.
DavidsonMorris are specialist business immigration legal advisers, working with UK employers to ensure compliance with their duties to prevent illegal working.
If you have a question about any aspect of Right to Work compliance, contact us for assistance.
Avoiding discrimination in Right to Work checks FAQs
Do you have proof of eligibility to work in the UK?
If a worker’s immigration status is held in digital format, they can prove their right to work by providing a share code to enable their employer to view their status online or, alternatively, provide a hardcopy document, like a passport.
How can you avoid discrimination when hiring?
One of the best ways to avoid discrimination when hiring is to put in place a consistent, transparent and fair recruitment process which treats job applicants equally, regardless of race, nationality or national or ethnic origins.
How do you answer what is your eligibility to work in the UK?
In most cases, a person’s eligibility to work in the UK can be proven by providing their employer with a share code to view their right to work record via the Home Office online Right to Work Checking Service.
Last updated: 12 May 2022