Right to work checks are a fundamental part of the recruitment process, helping employers ensure that prospective employees have the legal right to work in the UK. However, despite the serious consequences of getting these checks wrong, right to work compliance can sometimes be overlooked or treated as an administrative task rather than an important legal duty.
Failing to carry out the appropriate checks can place organisations at significant risk of financial penalties, reputational damage and in some cases, imprisonment. So, why do some organisations fail to get it right?
In this blog, we look at some of the key areas employers need to consider when carrying out right to work checks, including when checks should be completed, using recruitment agencies, record keeping and the risks of getting it wrong.
When Should a Right to Work Check be Completed?
A right to work check should be completed, with the necessary evidence obtained and retained, before the prospective employee starts work. If a right to work check has been missed, carrying out a check after the employee has started work is still preferable to leaving it outstanding. However, this should not be relied on as a substitute for having the correct process in place from the outset. Having a clear and consistent process will help employers demonstrate that their recruitment processes are compliant.
Using a recruitment agency or another third party does not necessarily remove the employerโs responsibility for right to work compliance. Employers should understand what checks have been carried out, who is responsible for completing them and whether the required evidence has been obtained and retained correctly.
Digital & Manual Right to Work Checks
Employers can carry out right to work checks digitally or manually, depending on circumstances and the documents provided.
Manual checks should be carried out in accordance with Home Office guidance. This involves examining original documents, checking they are valid and belong to the person presenting them and keeping a clear record of the checks undertaken. Organisations using digital verification services should ensure the provider is listed on the official Government Digital Verification Services Register. This is particularly important for employers seeking to rely on the check as a statutory excuse (legal defence) against a civil penalty for illegal working.
Upcoming Changes to Right to Work Checks
From 1 October 2026, the right to work scheme is being extended beyond traditional employees. Under the draft Code of Practice on Preventing Illegal Working, employers will need to consider right to work requirements when engaging certain workers, sub-contractors and potential employees from recruitment agencies or other third parties.
The changes mean organisations should review their wider workforce and contractual arrangements, rather than focusing solely on employees. Where subtractors or third parties are involved, employers will need stronger contractual controls and processes to ensure the appropriate right to work checks are carried out.
To help strengthen compliance, weโve created a Right to Work Compliance Audit Checklist specifically for employers engaging individuals who are not on the standard PAYE payroll. It provides a practical way to review your current processes and identify and potential gaps. Download your free copy from our website here.
While these changes broaden the scope of right to work checks, the fundamental principle remains the same โ employers must carry out the prescribed checks correctly and retain the necessary evidence to establish a statutory excuse against a civil penalty.
Reasons Right to Work Checks are Sometimes Overlooked
There can be several reasons why right to work checks are missed or completed incorrectly. These could include:
- A lack of understanding of the employerโs legal obligations
- Limited HR or administrative resources
- No clear processes or ownership within the organisation
- Rushed recruitment or onboarding process
Whatever the reason, failing to have a robust process in place can expose organisations to unnecessary risk.
The Importance of Keeping Clear Records
Simply completing a right to work check is not enough. Employers must also ensure that appropriate records and evidence are retained. Copies of all relevant documents or evidence of the online checking process should be kept securely for the required period, alongside appropriate records of the checks undertaken. If an organisation is required to demonstrate that it has complied with its legal obligations, having a clear audit trail can be particularly important.
Areas of Risk and the Consequences of Getting it Wrong
A common area of risk is assuming that a right to work check only needs to be completed once. Where an employee has a time-limited right to work, follow-up checks must be carried out at regular intervals. Employers should therefore have systems in place to monitor expiry dates and take proactive action before the right to work expires.
Right to work checks should not be carried out just because an individual appears to be a foreign national or is perceived to be from a particular ethnic background. Targeting individuals for checks based on nationality, race, ethnicity or appearance could create a risk of discrimination. Applying consistent processes to all prospective employees can help employers meet their legal obligations while supporting fair and non-discriminatory recruitment practices.
The potential consequences of employing someone who does not have the appropriate right to work can include substantial financial penalties, reputational damage and, in serious cases, criminal liability.
Expert HR Support for a Compliant and Streamlined Right to Work Process
At EML, we work with our clients to remove the administration burden of completing right to work checks. We carry out second verification pre-recruitment checks using a third-party platform to raise a case and ensure a compliant process. Once verification is complete, we issue an offer letter and contract of employment to the client, further reducing the administration burden. An employee cannot commence employment until the required verification checks have been completed.
Our team of highly experienced HR professionals has extensive knowledge of this complex area, and provide our clients with the confidence that the process is being handled correctly. However, the ultimate responsibility for ensuring compliance with right to work requirements remains with our clients.
Is Your Right to Work Check Process Robust Enough?
Right to work checks can easily become an overlooked part of a busy recruitment process, particularly where organisations are hiring quickly or relying on third parties. However, a straight-forward, consistently applied approach can help employers reduce risk and ensure that the appropriate checks are completed at the right time.
If youโre unsure whether your organisationโs right to work processes are compliant, or youโre concerned that checks may have been missed, EML can help. Our experienced consultants can provide practical guidance, help you identify potential gaps in your systems and put effective procedures in place. Get in touch on 01942 727200 or email enquiries@employeemanagement.co.uk to discuss how we can support you.
