Employee right to work checks
It’s natural to want to trust everything we’re told and take people at face value, however when it comes to starting an employment relationship, it’s an unnecessary risk. Simple checks could save you time and energy further down the line.
When employing a new member of the team, it’s an important step to carry out employment checks such as references, right to work, qualifications and so on, ensuring any offer of employment is subject to those checks.
One of the most common forms of employment check is by way of references, that way if you receive a poor reference from a previous employer it’s easier to withdraw/dismiss/terminate the offer if you’ve made it conditional on references in the first place – especially without notice.
However, employers have no legal obligation to provide references, so sometimes it might be difficult to obtain them, through no fault of the individual. However, most employers will at least provide a factual reference confirming the individual did work at the last position and confirm their employment dates.
Right to work checks
Every employer is under a duty to prevent illegal working and that means you need to carry out right to work checks before an individual starts working for you.
The first thing you should do is ask to see their passport and any other right to work documents such as a separate Biometric Residence Permit (BRP) or a visa found within the passport itself.
You then need to take a copy of the documents, signing and dating the copies as evidence that a right to work check was undertaken. These then need to be stored in a secure place in an unalterable format.
Employing migrant workers is complex and a new immigration system comes into play on 1 January 2021 when we leave the EU and if you’re unsure of anything, take specialist legal advice to avoid criminal and/or civil penalties.
If you fail to carry out checks for all individuals, and only ask for ID for those you think are non-EU citizens, you could face claims of discrimination.
Other employment checks
Some jobs may require a medical assessment, in which case you can ask employees to undertake a medical questionnaire or examination – but you should ask yourself if it’s really necessary for the role and exercised with discretion.
The right to carry our a criminal record check is limited and is only possible and appropriate for certain roles i.e. working with children or vulnerable adults.
It might come as a surprise but many people lie on their CVs, with 30% of people admitting to bending the truth according to a survey conducted by recruitment experts The Ladders. If the job role requires a certain qualification or accreditation, don’t be afraid to ask for proof to verify them.
It’s worth checking if your chosen candidate is subject to any existing contractual obligations such as non-competes or non-solicit which might prevent them from dealing with certain clients in a certain timeframe.
What happens if I don’t carry out a right to work check?
Failing to carry out right to work checks can result in harsh penalties. If the Home Office carry out spot checks and you’re found to have workers who aren’t entitled to work in the UK and fail to satisfy them that you’ve carried out the appropriate checks, you could face a civil penalty of up to £20,000 in respect of each illegal worker.
The other checks can have wide ranging consequences including breach of contract issues and discrimination claims. The best thing you can do to protect your business from risk is to have well drafted employment contracts, procedures and a paper trail along the way, documenting it all to put yourself in the best position possible should you find yourself facing a claim or dealing with a difficult situation with an employee.
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