This content was reviewed on 6 Feb 2024.
As an employer, you must check that job applicants have the legal right to work in the UK before they start their employment.
Our legal experts explain how the rules might affect your recruitment plans and the steps you need to take to perform a compliant right to work check.
What is a right to work check?
A right to work check is used by the Home Office to verify that workers have the right to work in the UK. You must check an applicant is allowed to work in the UK before you employ them, or you could face a penalty if it later transpires your employee does not have legal right to work in the UK and you did not carry out the correct check. The penalties were increased from 22 January 2024 from £15,000 per worker for a first breach to £45,000 per worker. Repeat breaches increase from £20,000 per worker to £60,000 per worker. This is the first increase of civil penalties since 2014.
When should a right to work check be carried out?
You should carry out a compliant check before the employment commences, or you could face a penalty if it later transpires that an individual you employ does not have the legal right to work in the UK.
What are rules for overseas workers?
Under the points-based immigration system, with the exception of Irish citizens, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points. Unless the overseas worker already has immigration permission to work in the UK, you must have a sponsor licence in place and for all workers you need to carry out a right to work check in accordance with updated Home Office guidance.
How should employees prove their right to work?
To carry out a right to work check, you may either:
- check the applicant’s right to work online, if they’ve provided their share code, or
- Check the applicant’s right to work manually, by checking the applicant’s original documents
When asking for proof, you can check if a document allows someone to work in the UK using a handy tool on the government website.
If you’re unsure, you can access a right to work checks employer guide for more guidance.
How to carry out a right to work check
When checking a candidate has the right to work in the UK, you’ll need to:
- Ensure your business is ready to take on an employee
- Ask to see original documents
- Check the documents are valid
- Make and keep copies of the documents
- Record the date you make the check
When copying and storing documents, it’s important to follow the rules on data protection.
What do I need to check?
There are several factors to consider when assessing evidence, including:
- The documents are genuine and belong to the applicant
- Dates have not expired
- Photos of the applicant are the same
- Date of birth is the same
Employers will have a continuous statutory excuse against a civil penalty if they carried out an initial right to work check correctly.
For existing employees, to avoid unfair dismissal claims, you must follow a fair dismissal process when terminating their employment where the employee is unable to evidence that they have immigration permission to work in the UK. FSB members may also refer to the fact sheet on ‘Some other substantial reason dismissals’ on the FSB Legal and Business Hub for guidance on a fair dismissal process in this circumstance.
Where can I find more information?
You can view the full government guidance here. A comprehensive checklist for carrying out a check is also available.
FSB members also have access to the following templates and guides on the FSB Legal and Business Hub:
- Template letter to new recruit requesting evidence of right to work
- Right to work checklist
- Fact sheet on preventing illegal working, which has further guidance on right to work checks for new recruits.
Hiring talent from abroad?
We’re here to help. FSB members can access specialist immigration support as well as guidance and advice from our 24/7 legal and HR helpline.