The right to work check is an essential process you must carry out before you hire someone.

Agencies, like employers, need to be clear what right to work means for them, and what its implications are when it comes to recruitment.

The Government states that all employers have a responsibility to prevent illegal working. Some employers rely on agencies, as third parties, to carry out right to work checks, but this does not prevent the employers from being liable.

However, agencies themselves will be liable if the employee remains under contract to the during their period of employment.

This guide sets out concisely and clearly what right to work is and how agencies should carry out Right to Work checks.

1. What Right to Work Means

For anyone entering the United Kingdom, right to work is a legal requirement if they wish to work here.

As such, it is a part of UK employment law. It has the same level of importance as employee background checks.

Right to work is linked to the immigration status of an individual. Some nationalities may have a default right to work in the UK due to their nationality. Others may have to meet certain criteria, or wait until they have been in the UK for certain period of time.

Anyone without a right to work cannot work legally in the UK.

Employers must ensure people they hire have a right to work, or they can face penalties. As third party suppliers, agencies also have this legal responsibility, if the worker remains employed by the agency throughout their contract.

2. The Right to Work Check

As an agency, you must check a candidate’s details. This should first happen when you register them on your books, before they are put forward to be eligible to fill any roles.

You should also carry out follow-up checks if they have a time-limited right to work, such as a student visa.

The check must involve checking all a candidate’s documents and details to establish whether they have the right to work in the UK.

This also means checking candidates for voluntary work, because the rules state that the right to work check applies to any role where an individual could be paid, even if the individual is not a paid employee.

Agencies must check all potential candidates for right to work, regardless of their immigration status, to ensure they are being non-discriminatory.

3. Carrying Out the Check

To carry out a right to work check, an agency must first obtain the appropriate documents, then check they are valid and real, and finally store copies for future reference.

The Government has published a comprehensive Right to Work Checklist of appropriate documents for checking, and a guide to which combinations of these documents can apply.

To check whether a document is valid can be more challenging, since many of these documents, such as birth certificates, may not have an international standard format.

What matters is that you can state you are reasonably certain of the document’s validity.

Key things to check are:

• Photographs – does the image match the candidate, and is it the same as on the other documents?
• Consistency – are dates of birth consistent across different documents?
• Quality – does the document appear in good condition with clear print?
• Evidence of tampering – are there any misaligned seals or photographs?

For digital checks, some documents may have embedded chips, which are much harder to fake.

4. Copying and Storing Information

Retaining copies of appropriate information for storage comes with its own responsibilities for agencies.

The copy must be attested, which means signed and dated.

It must be of a good quality and clear and must show both front and back of documents, even where the back is blank.

One method is to have a paper copy, but there are now options for digital storage of copied documents in the cloud.

You must store these copies for a period of up to two years after the subject has left employment, or, in the case agencies, ceased to be registered with you.

Under GDPR, you must ensure that you are only collecting the documents and data that are necessary to meet right to work checks.

Your Responsibilities and Reputation

Failure to comply with right to work checks can result in fines of up to £20,000 per worker, a loss of trading licence and being listed publicly. Consequently, there is a considerable risk of lasting reputational damage.

Agencies should thoroughly familiarise themselves with right to work legislation and ensure they have robust processes in place for checking.