Right to work checks

A hot topic this month has been the UK government serving its formal notice under Article 50 of The Treaty on European Union to terminate the UK’s membership of the EU. At present, nationals from the European Economic Area have the right to work in the UK, and this position will continue at least until the UK’s exit.

Following the UK’s departure, restrictions may be introduced on the right to work for EEA nationals. To that end, employers feel that time has come to devise a plan so that they do not fall foul of their obligations to prevent illegal working. There are certain checks which must be carried out to ensure candidates and/or employees have the right to work in the UK and these are as follows:

  • Obtain the original document proving their right to work. The types of documents that can be relied on vary for different individuals, therefore, employers are advised to check the guidance available on the Home Office website.
  • Check the documents in the presence of the individual to ensure that the documents relate to that individual and that they are original, unaltered and valid.
  • Make and retain a copy of the documents and record the date of the check and the date for follow-up checks if any.

In order to avoid claims for discrimination, an employer should treat all prospective employees in the same way. Therefore, employers should conduct checks on all prospective employees and avoid making assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origin, accent or length of time they have been resident in the UK.

It is a criminal offence to employ an individual who an employer either knows is an illegal worker or who it has reasonable cause to believe is disqualified from working by virtue of his immigration status.

Dominic Bonham