Members should already be aware that the Home Office has a Right to Work Checklist of the documents that prove a job applicant has the right to live and work in the UK. You should check these documents whenever you take someone on, wherever they may appear to come from. There is now an online Right to Work Checking Service and where this can be used you will no longer need to ask to see original documents. The online check can be used for anyone who has either a biometric residence permit or a biometric residence card. The individual must first view their own Home Office right to work record, if they wish they can then share this information with an employer by providing their 'share code', which will enable the employer to access the record. You will need to:
- Be satisfied that the photo on the online check is accurate.
- Keep a copy of the online check response that shows the individual's right to work.
- If the individual is a student, keep additional documents relating to term dates.
- Carry out any necessary follow up checks.
Where someone cannot or does not want to use the online check you must continue to use the manual, four stage checking process, which is:
1. See the employee's original documents, electronic or certified copies are not
2. Check documents for details of any restrictions, for example non-EEA students can only work a certain number of hours each week and evidence of term dates must be retained. Check documents for any obvious signs of fraud, employers are not expected to be expert in spotting forgeries but they are expected to notice obvious errors or amendments to documents.
3. Keep a copy of the documents. This should be signed and dated by the person who carried out the check: they should also write "Original document seen by me on [date]" on the copies. This is a vital part of the process as if you can produce a copy of the documents seen this may provide a defence to a claim of illegal working.
4. Note the dates when follow up checks will be necessary, for example towards the expiry date of a visa.
Penalties for illegal working
If an employee does not have the right to work, and the employer has not followed proper procedure, the employer can be fined up to £15,000 for the first offence and £20,000 for any subsequent offences. There are also criminal penalties if the employer had reasonable cause to believe that an employee did not have the right to work. The Home Office also have the power to close premises for up to 48 hours where the illegal working is found to have taken place.