Updated guidance for carrying out right to work checks

Earlier this month, the government released updated guidance for employers on carrying out right to work checks. These updates included some additional footnotes to ‘Annex A: Lists of acceptable documents for manual right to work checks’. These were:

a)     confirmation that a clipped British or Irish passport is a cancelled document and therefore not acceptable proof of right to work

b)     clarification that a short or long birth certificate is considered acceptable when presented with official evidence of name and national insurance number issued by a government agency or previous employer

Whilst these seem like simple amendments, there is potential for ‘point a’ to cause confusion for those responsible for carrying out right to work checks if they don’t have a clear understanding of the difference between a clipped and an expired passport.

An expired passport is one that has simply passed its ‘use by’ or ‘valid to’ date. Whilst it has expired, these passports can be used to show proof of right to work in the UK, when conducting a manual check (when using an IDVT check, a live passport is required). A clipped passport on the other hand, is one that has been cancelled. This may be due to several reasons but is usually where a new passport has been issued that supercedes it. As the updated guidance confirms, these passports cannot be used to prove right to work.

Reminder of the importance of right to work checks

The recent news of hundreds of people being arrested as part of a UK-wide crackdown on illegal working reminds us of the importance of carrying out right to work checks. All employers, regardless of size, are under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. Other penalties that could be faced for employing someone illegally include criminal prosecutions and even the forced closure of the business.

If an employer carries out the appropriate checks, they will establish their “statutory excuse”. In practice, this means that even if new information later comes to light and it transpires that the individual did not in fact have the right to work in the UK, there won’t be any liability for having employed the individual illegally.

Right to work checks

Right to work checks must be conducted prior to the start of employment. Checks may be carried out manually, typically involving checking a passport or birth certificate, or may be done online or digitally. Online checks will usually be used for foreign nationals who have a ‘share code’ that can be checked using the Home Office’s online system. If you are unsure which check to carry out, contact our advice line who will be able to support further.

Record keeping

An essential part of right to work checks and maintaining the statutory excuse is record keeping. A record is needed of every document that has been checked, or if completing a digital check, the outcome. These should be kept securely for the duration of employment and for two years after and should be quickly accessible should government officials need to check them. Being unable to produce them could mean the statutory excuse is lost.

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