Right to Work

Establishing the Statutory Excuse

Step 3 – Retaining copies of original documents

Employers must make a copy of the relevant page or pages of the ID document(s), in a format which cannot be subsequently altered, for example, a photocopy or scan (Write Once Read Many / WORM media.)

In the case of a passport or other travel document, the following parts must be copied

• The document’s front cover

• Any page containing the holder’s personal details - specifically any page that provides details of nationality, his or her photograph, date of birth, signature, date of expiry or biometric details.

• Any page containing UK Government endorsements, noting the date of expiry and any relevant UK immigration endorsement which allows the prospective employee to do the type of work offered.

Other documents should be copied in their entirety.

Copies of the documents should be kept securely for the duration of the individual’s employment and for a further two years after their employment has ceased.

Persons not entitled to work

If, having carried out these checks it is established that the prospective employee is not permitted to work, then the employer is entitled to refuse employment to that person.

It is up to the prospective employee to demonstrate that he or she is permitted to do the work offered.

Retaining the Statutory Excuse

If your prospective employee produces a List A document, they can work for you for an indefinite period and the appropriate checks provide an ongoing excuse against liability to pay a civil penalty.

Workers who have provided List B documents due to their limited leave to remain require the statutory excuse to be re-established every 12 months and before the limited leave expires. The employer must follow the three step process in full to re-establish the statutory excuse for the next 12 months.

At any stage that an employer knows that a worker is working illegally the right to the statutory excuse and the employer is committing a criminal offence for knowingly employing an illegal worker.

Periodic checks that monitor expiry of right to work documentation and the checking agencies, ensure the employers are following the right procedures.

If, having carried out these repeat checks it is established that the worker is no longer permitted to work, then the employer must take appropriate steps within employment law to cease offering work to that person.

Transferred Employees

Employers who acquire staff as a result of a Transfer of Undertakings (Protection of Employment) transfer are provided with a grace period of 28 days to undertake the appropriate document checks following the date of transfer.

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