How to Conduct Right‑to‑Work Checks Correctly

Employers in England and Wales have a statutory duty to verify that everyone they hire is legally entitled to work in the UK. Carrying out accurate right‑to‑work checks before employment begins protects the business from civil penalties, criminal liability and legal challenges, and supports fair recruitment practices. This article explains the legal framework, step‑by‑step procedures, employee rights, common issues and employer responsibilities when conducting right‑to‑work checks. It also highlights key risks and practical guidance for compliant processes.

Why Right‑to‑Work Checks Matter

Under UK immigration law, it is a legal requirement for all employers to confirm that potential workers have the right to work in the UK before they start employment. Failing to do so correctly may lead to civil penalties of up to £60,000 per illegal worker, and in some cases criminal sanctions if the employer knowingly employs someone without permission. Employers also need to avoid unlawful discrimination when carrying out these checks.

The aim of right‑to‑work checks is to prevent illegal working by ensuring a person's immigration status or nationality entitles them to undertake the work offered.

Legal Framework and Guidance

1. Statutory Duty to Prevent Illegal Working

Employers must conduct right‑to‑work checks on all prospective workers prior to employment. Correctly performed checks provide a “statutory excuse” against civil penalties, even if the individual later turns out to be ineligible to work.

2. Codes of Practice and Equality Obligations

The Code of Practice for Employers: Avoiding Unlawful Discrimination while Preventing Illegal Working provides practical guidance on conducting checks without discriminating against applicants on the basis of protected characteristics such as race, nationality or ethnicity. Treating applicants consistently and fairly is essential to comply with the Equality Act 2010.

3. Home Office Guidance

The Home Office issues an Employer's Guide to Right to Work Checks, which sets out the specific documents acceptable for checks, how to conduct manual and online checks, and retention requirements for the necessary evidence.

Who Must Be Checked and When

All Prospective Employees

Checks must be carried out for all job applicants, including British and Irish citizens, at the point of recruitment and before a contract of employment begins. Doing the check after a worker has started may leave the employer liable for penalties.

Follow‑Up Checks for Time‑Limited Status

If a worker's right to work is time‑limited (for example, based on a visa), a follow‑up check must be made before their permission expires to maintain the statutory excuse.

Types of Right‑to‑Work Checks

Employers can choose one of three acceptable methods to establish a statutory excuse when verifying right‑to‑work status:

1. Manual Document Check

A manual check involves inspecting and copying original documents that show the person's identity and right to work. Acceptable documents are listed in the guidance under List A (continuous right to work) and List B (time‑limited right to work). Employers must retain clear copies for the entirety of employment and for two years afterwards.

2. Online Home Office Check

For many non‑British nationals, employers can use the Home Office online right‑to‑work checking service by entering a candidate's share code and date of birth. This provides real‑time confirmation of the individual's immigration status. The employer must retain a copy of the online result.

3. Digital Verification Services

Employers may use a certified Digital Verification Service (DVS) to check identity and right to work. This method can be more secure and fraud‑resistant, but the employer must satisfy themselves that the result pertains to the individual presenting for work and retain evidence.

Step‑by‑Step: How to Conduct a Manual Check

1. Arrange to see original documents from the list of acceptable evidence before the employment start date.
2. Inspect necessary pages showing identity, visa details and right‑to‑work information.
3. Copy and retain the full documents securely (not just front covers).
4. Record the date of the check and link it to records that can be produced if required.
5. If the worker's right to work is time‑limited, schedule a follow‑up check before expiry.

During manual checks, employers should be consistent and not check only certain groups of applicants, which could constitute discrimination.

Avoiding Unlawful Discrimination

Employers must apply checks consistently to all applicants regardless of appearance, accent, name, nationality or ethnicity. Making assumptions about immigration status based on such characteristics may be unlawful under the Equality Act 2010 and the Race Relations Order in Northern Ireland.

Providing reasonable opportunities for individuals to demonstrate their right to work, such as offering manual checks if online evidence is not available, helps avoid indirect discrimination.

Record Keeping and Evidence Retention

To maintain a statutory excuse against civil penalties, employers must:

• Retain copies of evidence used to conduct the right‑to‑work check;
• Store them securely for the duration of employment and two years after employment ends;
• Destroy or dispose of records securely once the retention period has passed.

Accurate record‑keeping also supports responses to tribunal claims or compliance audits.

Risks of Non‑Compliance

Civil Penalties

Employers who fail to conduct correct right‑to‑work checks may face civil penalties of up to £60,000 per illegal worker if an employee is later found to be working without the correct immigration status.

Criminal Liability

Employing someone known to be disqualified from working in the UK can constitute a criminal offence. Correct checks help protect against such allegations in most cases.

Discrimination Claims

Inadequate or biased handling of right‑to‑work checks can support claims in an employment tribunal under the Equality Act, especially if the process disproportionately impacts certain individuals.

Common Questions About Right‑to‑Work Checks

When should checks be conducted?
Checks must be done before employment begins and before any work is performed by the individual.

Can an employer refuse to do manual checks?
No. Employers must offer manual checks where required; they cannot insist only on online checks and refuse manual document inspection.

What if a candidate's permission status is unclear?
Employers can use the Employer Checking Service to request Home Office verification if a candidate cannot provide the necessary documents or online confirmation.

Practical Tips for Employers

• Train recruitment staff on up‑to‑date check procedures and acceptable documents.
• Use the official Right‑to‑Work Checklist from GOV.UK before hiring.
• Record decisions and evidence clearly to support compliance.
• Monitor expiry dates for time‑limited permissions and schedule follow‑up checks.
• Ensure fair and consistent application of checks to avoid discrimination.

Conclusion

Conducting right‑to‑work checks correctly is a legal obligation that protects employers from penalties, criminal liability and discrimination claims. Employers must verify a worker's right to work in the UK before employment begins, using manual checks, online checks or certified digital verification services. They must retain evidence securely and treat all applicants consistently to comply with immigration and equality law. Following Home Office guidance and adopting structured processes ensures lawful, reliable hiring practices in England and Wales.