Hiring the right candidate isn’t just about finding the best skills or experience – it also means ensuring your new employee is legally allowed to work in the UK. Under the Immigration, Asylum and Nationality Act 2006, all employers are legally required to carry out right to work checks before someone starts work. Failing to do so could result in a civil penalty of up to £20,000 per illegal worker or even criminal prosecution in serious cases.
For businesses large and small, this makes right to work checks a critical step in the recruitment process. But the process itself isn’t always straightforward – especially when employees are on visas or undergoing immigration changes.
In this guide, we’ll explain what right to work means, how the checking process works and how you can protect your business from risk. We’ll also explain how to access legal support from our expert immigration team at Osbourne Pinner Solicitors.
What does ‘right to work’ mean?
The term ‘right to work’ refers to someone’s legal permission to take up paid employment in the UK. All British and Irish citizens have an automatic right to work and those with indefinite leave to remain (ILR), settled status or certain types of visas can also lawfully work here. But the right to work may be subject to specific conditions, especially for visa holders – such as restrictions on the type of work they can do or the number of hours they can work.
Importantly, it is the employer’s responsibility to confirm and record that a worker has the correct permission before they begin working. This duty applies to all staff, including part-time, temporary and contract workers.
Why right to work checks matter
Employers who fail to carry out adequate checks can face serious consequences. If someone is found working illegally and you haven’t conducted a valid check, you could be hit with a fine of up to £20,000 per breach. In more serious cases, particularly if the employer knowingly hired someone without the right to work, criminal charges could apply – carrying a risk of up to five years in prison and an unlimited fine.
Beyond legal penalties, the reputational damage can be significant. Home Office raids, public naming and shaming and loss of a sponsor licence (for visa-holding employees) can all have lasting consequences for a business. However, if you’ve carried out a correct check, you’ll have a statutory excuse – even if it later turns out that the worker did not have permission.
The different types of right to work checks
There are three main ways to check someone’s right to work in the UK. Each is valid in different circumstances and must be carried out in a specific way:
1. Manual document check
This involves checking the individual’s original physical documents, such as a British passport, birth certificate with national insurance number or biometric residence permit (BRP). You must see the document in person (or via video call if permitted), verify its authenticity and make a dated copy for your records.
2. Online right to work check
For many visa holders, including those on Skilled Worker or Student visas, you must use the Home Office’s online service. The individual provides a ‘share code’ and you use this along with their date of birth to access their employment status via the Home Office website. You’ll need to download and store the result, with the date of the check.
3. Employer Checking Service (ECS)
If someone cannot provide documents or a share code – perhaps because they’ve applied to extend their visa – you can request verification from the ECS. This confirms whether they have a right to work while their application is being processed.
Knowing which route to follow is crucial. Relying on expired or incorrect documents could mean your check is invalid and you lose your legal protection.
When and how to carry out repeat checks
If you’re employing someone on a time-limited visa, it’s not enough to check their right to work once and assume everything is in order. You are legally required to carry out a follow-up check shortly before their permission to work expires. The date of expiry will be listed on the right to work result or immigration document you received during the initial check.
Failing to conduct a repeat check where required means you lose your statutory excuse – exposing your business to potential penalties if the individual’s right to work lapses. It’s important to keep a reliable record-keeping system that flags upcoming expiry dates and prompts you to take action in advance.
What about remote workers?
Right to work checks must still be carried out even if the employee will be working from home or outside a traditional office setting. While temporary COVID-19 measures previously allowed for remote checks via video call and scanned documents, most of these concessions have now ended.
Employers should be aware of the current rules and ensure they’re following the latest Home Office guidance. You may need to meet the individual in person or use Identity Service Providers (IDSPs) for digital verification where eligible.
Common pitfalls to avoid
Many employers assume that a National Insurance number alone is sufficient evidence of right to work. This is not the case. A National Insurance number must be accompanied by other accepted documents and in many cases, the online share code system or BRP is the only valid proof.
Another common error is failing to keep proper records. It’s not enough to just see the documents – you must retain copies of them securely for the duration of the person’s employment and for at least two years afterwards. These copies should be clearly dated, stored securely and accessible for inspection if requested by the Home Office.
You should also avoid discriminatory practices. Employers must treat all job applicants equally during the right to work process. That means asking all candidates – regardless of nationality or appearance – for proof of right to work only at the appropriate stage, usually after a job offer has been made. Selectively checking some applicants and not others could lead to claims of discrimination under the Equality Act 2010.
Support for sponsor licence holders and Skilled Worker employers
For employers who hold a sponsor licence and employ workers on Skilled Worker visas or other sponsorship routes, right to work checks are especially important. You have enhanced responsibilities to maintain compliance with immigration rules and face the risk of losing your sponsor licence if you get it wrong.
This includes reporting changes to employment, monitoring visa expiry dates and ensuring that all sponsored workers are legally allowed to work in their roles. If you’re unsure about your responsibilities or need help maintaining compliance, our immigration solicitors can guide you through the process.
Getting expert advice on right to work compliance
Right to work checks are not just a formality – they are a legal requirement with significant consequences if ignored or mishandled. Whether you’re a small business owner hiring your first employee or a large organisation managing dozens of sponsored workers, it pays to have a clear understanding of your legal duties.
At Osbourne Pinner Solicitors, our immigration lawyers regularly advise employers on how to carry out compliant right to work checks and avoid the risks of illegal employment. We also help businesses secure and maintain their sponsor licences and navigate the rules for employing foreign nationals.
If you have concerns about your recruitment process, visa sponsorship compliance or employee records, we’re here to help. We offer a free 30-minute consultation to discuss your situation and provide practical legal guidance.
Call us today on 0203 983 508 or email [email protected] to speak with one of our expert immigration solicitors.
You can come to our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester – or speak to us on a video call if you’d prefer a remote consultation.
