Online “Right to Work” checks

A “Right to Work” check is a check that an employer can do to make sure an employee can legally work in the U.K.

The check should be done before an employee starts work. Doing the check properly (and “follow-up” checks, as needed) means that the employee cannot be fined if it turns out the employee isn’t allowed to work in the U.K.

Doing an online check using the online checking service will establish a “statutory excuse” from the employer having to pay a section 15 penalty (for employing an illegal worker).

This “statutory excuse” will last for as long as the online check says that work is allowed. (It may be continuous or time-limited.) If the excuse is time-limited, the employer will have have to do a “follow-up” check when the permission runs out.

When an online check can be done

An employee (or prospective employee) can prove thier right to work in the U.K. using an online check if he or she —

has “settled” or “pre-settled” status under the EU Settlement Scheme (EEA / Swiss (but not Irish) nationals and their family members)
has a Biometric Residence Permit (BRP)
has a Biometric Residence Card (BRC)

Not all (prospective) employees will have an immigration status that can be checked online, using the online checking service . If an employer cannot do an online check, it should do a manual check instead.

Doing the “Right to Work” check

There are 3 steps to an online right to work check:

Ask the (prospective) employee to get their share code and give it to you (the employer).
Check the employee’s right to work details using the online checking service (using the employee’s share code and date of birth).
Make a clear copy of the response given by the online checking service, and keep it safely.

What to check

An employer needs to check that:

the response (given by the online checking service) says that the person is allowed to do the type of work being offered (including any limit on the number of hours they can work) (see article 4B(1)(b))
any photo shown in the response is that of the person themself (see article 4B(1)(c))
for students who have limited permission to work during term-times — the employer sees evidence of the person’s term and vacation dates (see article 6(2)) for the course that they are taking

It is unfair and potentially illegal for an employer to do anything (or ask their (prospective) employee to do anything) which goes beyond what is a “reasonable step” — in the name of doing a “‘Right to Work’ check”. Following articles 6(1)(a) and (e), an employer must take “all reasonable steps” to check the validity and ownership of documents given. Anything beyond that though may be considered unfair, or as constructive dismissal, discrimination, and/or harassment.

Keeping proof

As an employer, you must make a clear copy of the response given by the online checking service, in a format which cannot later be altered, and then keep it (either electronically, e.g. as a PDF, or in hard-copy) (see article 4B(1)(d)).

You need to keep the copy you’ve made for the whole time your employee works for you, and then for a further 2 years after they stop working for you.

Follow-up checks

A “statutory excuse” which comes from doing an online check will last for as long as the response of the online check says that the employee is allowed to work in the U.K. (see article 4B(2)).

Before this time comes to an end, an employer can do another (“follow-up”) “Right to Work” check — extending their statutory excuse, and allowing the employee to carry on working for them.

How to do a follow-up check

The employer can do a follow-up “Right to Work” check using another online check, or it can use one of the other (manual) ways of doing a check.

If the employee has no acceptable document because of an application / appeal / administrative review

If the employee’s permission to work in the U.K. has run out (according to the response of the online “Right to Work” check), and they don’t have a acceptable document for a “Right to Work” check — but the employer is “reasonably satisfied” that their employee has an outstanding application, appeal, or administrative review to vary or extend their leave in the U.K., then the time-limited statutory excuse will be extended for a further 28 days (see article 4B(3)). This is to enable the employer to verify whether the employee has permission to carry on working for them.

During this 28-day period the employer must contact the Employer Checking Service and get a Positive Verification Notice confirming the employee still has the right to undertake the work in question.

If the employer gets a Positive Verification Notice their statutory excuse will last for a further six months from the date specified in their Notice. They’ll then need to make a further check after that time.

If the employer gets a Negative Verification Notice, their statutory excuse will come to an end, and they should lay off their employee straightaway.

An application or appeal for your employee to vary or extend their leave in the U.K. must be made before their permission to work in the U.K. runs out. Otherwise you should lay off your employee straightaway.