You’re probably aware that there’s a legal duty for employers to ensure that their employees have the right to work in the UK.

But what you may not know is how to carry out the check; the consequences of getting it wrong and what to do if an employee cannot provide documents to prove their right to work.

So what is a Right to Work check and how do I do it?

Before you hire someone, you must be sure that they are legally allowed to work in the UK by carrying out a check of the person’s documents. This involves the following:

• Obtain the person’s original documents – the documents presented must be listed on the official list of accepted documents. Examples include a current passport or a birth certificate.
• Check if the documents are genuine – you should check the expiry dates; that the picture and date of birth match the person; that the document has not been tampered with, etc. You must always conduct these checks with the document holder in front of you.
• Keep a copy of all the documents for your records – make sure that they are safely stored and that your records clearly show when you carried out the check.

If an employee is only allowed to stay in the UK for a certain amount of time, you must carry out a follow-up work check before their leave expires to check their continuing right to work in the UK.

If you do not carry out Right to Work checks or don’t do them correctly, and it’s found you employ illegal workers, you may face having to pay up to £20,000 for each illegal worker. If it’s discovered that the person in question does not have the right to work but you have conducted the check correctly, you will be spared from paying the civil penalty.

What do you do if they can’t provide documentary proof?  

If you believe that you have an employee who may not have the right to work or cannot produce the required documents to prove their right to work, you will need to conduct an investigation to check the employee or potential employee’s right to work in the UK.

You can use the Home Office’s Employer Checking Service to see if they have an outstanding appeal, administrative review or application with the Home Office. If the applicant does have the right to work, they will send you a ‘Positive Verification Notice’. If they don’t have the right to work, they send you a ‘Negative Verification Notice’. Either way, you will know what their current status is. It’s important to keep records of this because it may be needed to prove that the person did have the right to work or the reason for terminating their employment.

After you have completed your investigation, you may arrange a formal hearing to talk through the matter.

If you have a reasonable and genuine belief that the employee does not have the right to work in the UK, you can terminate their employment for ‘some other substantial reason’ – this is one of the five legally fair reasons.

What do Employment Tribunals say?

In Baker v Abellio London Ltd, the Employment Tribunal held that an employer was allowed to fairly dismiss an employee who, although he had the right to work in the UK, could not provide a document that confirmed this.

Mr Baker was a Jamaican national, who had come to the UK as a child and had the right to live and work in the UK.

Prior to being employed, he was not asked to present any documents that proved his right to work. However, after two years, the employer noticed that there was no documentary evidence and asked the employee for proof. Mr Baker only had his passport, but this had expired.

The employer lent him money to obtain a new passport and endorsement confirming his right to work in the UK. Mr Baker applied for a new passport, but he did not apply for the endorsement. He was subsequently dismissed and he claimed unfair dismissal.

The Employment Tribunal concluded that the employer had acted within the reasonable range of responses in dismissing the employee. In particular, they noted that the employer had:

• investigated the employee’s immigration status
• loaned him money to cover the costs
• wrote to Mr Baker explaining what proof he had to produce
• warned him of the risk of dismissal
• given him opportunities to obtain proof
• allowed him to appeal against his dismissal.

Of course, cases are fact-specific, so the outcome may not be the same in all circumstances, but it does offer some useful guidance.

You should always take advice from your Ellis Whittam Employment Law adviser before dismissing an employee.