Right to Work Checks

Updated Government guidance issued on carrying out right to work checks.

The most significant updates contained in this guidance relate to the introduction of online right to work checks and an amendment to the acceptable document list to remove the requirement that a British birth certificate must be the full (long) certificate. A short or a long UK birth certificate are now acceptable documents to demonstrate a right to work in combination with an appropriately documented national insurance number.

FAQs from nursery clients on right to work checks for nursery staff:

Q: When should you carry out a right to work check on nursery staff?

A: Before you employ them! My advice is that you take evidence of right to work at the interview stage. If you ask every candidate for their right to work evidence at interview, it becomes part of the process and also avoids any discriminatory practices. Read more in section four of the guidance.

Q: Do I have to keep evidence of the right to work check?

A: Yes! Definitely yes! You must obtain original documents from either List A or List B of acceptable documents at Annex A of the guidance. You must then take a photocopy and certify that you have seen the original, including the date. This copy must be placed in the candidates’ recruitment file. If successful, keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you. You should also be able to produce these document copies quickly .

Q: What should I write on the photocopied version?

A: You must write the date that the check was carried out. This date may be written on the document copy as follows: ‘I certify that this is a true copy of the original document and the date on which this right to work check was made: [insert date] ‘. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record the fact that this is the date on which you conducted the check

Q: What about nursery staff who have TUPE’d over to my business?

A: If you acquire staff through TUPE transfers, undertake a fresh right to work on those staff they have acquired. The guidance allows for a 60 day grace period from the date of the transfer of the business to correctly carry out fresh right to work checks in respect of these those TUPE employees acquired.

Q: What documents can I accept?

A: My advice is to always check the government guidance and NOT keep local copies of guidance. The list of acceptable documents is here.

Did you know that you can use the Government’s online tool to help you carry out a check? Click here to try it now!

Practical ways that you can get right to work checks built into your nursery recruitment process:

• Ask the question on the application form
• Tell candidates in their interview confirmation that they need to bring their original evidence with them to interview
• Add it to your interview checklist to take copies
• Add it to the checklist to write the date the check was made
• Include it on your new starter paperwork checklist and/or personnel file contents page
• Include it on your offer of employment letter – just in case the documents haven’t been seen yet

Do you need to carry out an audit of existing staff files to make sure the correct documents are there?

If you are found to be employing someone illegally and you have not carried out the prescribed checks, you will face robust sanctions which could include:

• civil penalty of up to £20,000 per illegal worker;
• criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine;
• closure of the business and an application for a court compliance order;
• disqualification as a director;

not being able to sponsor migrants; and

• seizure of earnings made as a result of illegal working.

And finally…

We recommend that you use the government’s right to work checklist!

If you have any questions, or would like Early Years HR to help with your recruitment processes or file audits, please get in touch!