Right to work audits: How HR teams need to prepare

Employers have a legal obligation to ensure that employees have the right to work in the UK before they start working for the organisation. With fines for non-compliance about to triple, Mandie Sewa examines what HR teams should be doing to ensure they are ready for a right to work audit, which the government can conduct without warning.

Non-compliance with right to work requirements can result in severe penalties for employers. It is essential for HR teams to be aware of these penalties and take necessary measures to avoid them.

If an employer is found to have employed someone who does not have the right to work in the UK, it may face civil penalties. The fines can range from £15,000 to £20,000 per illegal worker. The exact amount depends on various factors, including the employer’s history of non-compliance and the severity of the breach. However, under new measures, effective from the start of 2024, the maximum fine for employing an illegal worker is increasing from £20,000 to £60,000.

In some cases, employers may face criminal charges if they knowingly employ individuals without the right to work. This can result in unlimited fines and even imprisonment for up to five years. It is crucial for HR teams to conduct thorough checks and maintain proper records to avoid such serious consequences.

Employers who hold a sponsorship licence to employ overseas nationals may have their license revoked if they fail to comply with right to work requirements. Losing the sponsorship licence can have significant implications for businesses that rely on international talent. Employers with a history of non-compliance are likely to face difficulties in obtaining a sponsor licence in the future.

Non-compliance with right to work checks can also lead to reputational damage for employers. The government publishes a list of employers found to be employing illegal workers showing the fines incurred.

In the first quarter of 2023, 26 businesses in London and the South East were fined a total of £370,000. Negative publicity and loss of trust from customers, clients, and potential employees can have long-lasting effects on a company’s brand and image.

There are some key steps HR teams should take to ensure all employees are legally able to work in the UK to avoid these penalties and any reputational damage.

Know how to establish a statutory excuse

A statutory excuse is an employer’s defence against a civil penalty. To establish a defence you must undertake one of the three checks below, before the employee starts work:

• Manual right to work check
• Right to work check using an Identity Service Provider (IDSP)
• Home Office online right to work check

The evidence you must keep when undertaking the checks will depend on which method you use.

Manual right to work checks

For a manual right to work check, there are three basic steps:

1. Obtain original versions of one or more of the acceptable documents.
2. Check the right to work documents in the presence of the holder. You must check the documents to ensure they are genuine, that the person presenting them is the prospective or existing employee, and that the photograph and date of birth are consistent across documents and with the person’s appearance.
3. Make a clear copy of the documents. Record the date on which the check is made, keep the copies securely in a format that cannot be manually altered, for the duration of employment and for two years after the employment has ended.

Using an IDSP

You can also conduct the checks using the services of an IDSP for British and Irish citizens who hold a valid passport, including Irish passport cards.

Digital identity verification conducted by IDSPs is the process of obtaining evidence of the prospective employee’s identity, checking that it is valid and belongs to the person who is claiming it.

There are three basic steps to conducting this type of check.

1. Use levels of confidence. The Home Office recommends a list of certified providers. You do not have to use a certified provider; you can use an alternative provider not featured on the list if you are satisfied that they can conduct the required checks.
2. Satisfy yourself that the photograph and biographic detail, for example, check the date of birth on the output from the identity document validation technology (IDVT) check is consistent with the individual presenting themselves for work.
3. Keep a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has ended.

Online right to work checks

The Home Office also has an online right to work checking tool for employers to obtain a defence against a civil penalty. It is not always possible to conduct an online right to work check as not all individuals have an immigration status that can be checked online, but again, there are three basic steps to conducting this type of check.

1. Only employ, or continue to employ a prospective or existing employee, if the online check confirms they are entitled to do the work in question.
2. Satisfy yourself that any photograph on the online check is consistent with the individual presenting themselves for work.
3. Keep the copies securely in a format that cannot be manually altered, for the duration of employment and for two years after the employment has ended.

When to run follow-up right to work checks

HR teams should have a robust system to repeat right to work checks for employees with time-limited permission to work in the UK. The system should identify the date of expiry and ensure systems are in place to undertake reviews before the permission to work expires. There is a danger that if this is not strictly managed the organisation would be exposed to significant risk.

Avoid discrimination

The Equality Act 2010 prohibits discrimination and other unlawful acts in employment practices on grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Anyone who believes that they have been discriminated against, directly or indirectly, by an employer or prospective employer can issue a claim in an employment tribunal. If the claim is upheld, the tribunal will normally order you to pay compensation, for which there is no upper limit.

It is therefore very important that HR teams are:

• Consistent in how they conduct right to work checks on all prospective and existing employees, including British citizens.
• Ensure job selections are made based on suitability for the post.
• Take care that prospective job applicants are not discouraged or excluded, directly or indirectly, because of known or perceived protected characteristics.

Preparing for a right to work audit in the UK requires HR teams to be proactive, knowledgeable, and meticulous in their approach. By familiarising themselves with the legislation, establishing robust recruitment processes, maintaining accurate records, conducting regular checks, implementing internal audits, staying informed about policy changes, and seeking professional advice when needed, HR teams can ensure compliance and minimise the risk of penalties or reputational damage.

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