As most employers are aware, it is unlawful to employ someone who does not have the right to reside or work in the UK, or who is breaching their conditions of stay.

Employers who fail to comply with the checking obligations and employ someone who does not have a right to work in the UK can face a maximum civil penalty of £20,000.00, regardless of whether the employer knew the employee did not have the right.

In circumstances where an employer knew, or had reasonable cause to believe, that the employee did not have a right to work, criminal sanctions could also be imposed.

In practice, employers can avoid civil and criminal prosecution by undertaking specified right to work checks. Previously, this involved obtaining the employee’s original documents as outlined in the Home Office guidance, checking that the documents are correct and valid, and retaining copies.

In a bid to simplify the current checking requirements, as of 28 January 2019 in specified circumstances employers are able to rely upon a voluntary online Right to Work Checking Service in order to evidence compliance with illegal working legislation.

This means that an employer will no longer have to obtain paper documentation from employees or workers or ascertain whether these are valid and correct.

The online service can currently be used by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme.

EEA nationals who do not have settled status under the EEA scheme will still need to evidence their right to work by producing the appropriate documents.

By using the online service, an employer will be able to avoid a civil penalty if:-

1. The online check confirms the employee is able to work in the UK and perform the work in question;
2. It is confident any photograph of the employee appearing on the online check is that of the employee;
3. It retains a copy of the check for 2 years following the end of the employment; and
4. It retains details of the terms and vacations dates of the employee’s educational course if they are a student.

The online Right to Work checking service is not mandatory and employers can chose to continue to verify the right to work via original documentation if it so wishes.

If you would like any further information about preventing illegal working or verifying an employee's right to work in the UK, please contact Christine Hart on 01772 229 832 or christine.hart@brabners.com