Keeping Documents To Prove An Applicants Right to Work

Keeping Documents To Prove An Applicants Right to Work

May 13, 2018

Checking Documents

It’s quite often that we read that your Local Authority Advisor has said you can’t keep documents that you have used to check a job applicants right to work in the UK.  Just great, and will they accompany you in court when you are in trouble for hiring an illegal worker.

Then we read comments like “We were told we weren’t allowed to keep id copies. Is it only for foreign workers, we sign a form in our Single Central Record (SCR) to say a manager has seen the original.”

Fakes exist, fake passports and fake identity documents are a big deal. We recently heard of a Portugese lorry driver with a fake licence. Please don’t think there aren’t people in childcare with fake documents.

Whilst I can understand the sector’s reluctance to keep copies of identity documents the bigger picture is that all employers need to do so to comply with the Asylum and Immigration Act.

It is the employer’s responsibility to check that a job applicant is allowed to work for them, before they employ them.

  • They must see the applicant’s original documents.
  • They must check that the documents and valid with the applicant present.
  • They must make and keep copes of the documents and record the date they made the check.

The employer could face a penalty if they employ an illegal worker and have not carried out the correct right to work check. The penalty, or fine, currently stands at £20000 per illegal worker.

You must not discriminate against anyone because of their race. Therefore to only retain the documents of foreigners as the poster suggested would be discrimination.

Here’s what you need to know when checking documents:

  • the documents are genuine, original and unchanged and belong to the person who has given them to you
  • the dates for the applicant’s right to work in the UK have not expired
  • photos are the same across all documents and look like the applicant
  • dates of birth are the same across all documents
  • the applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
  • for students you see evidence of their study and vacation times
  • if 2 documents give different names, the applicant has supporting documents showing why they’re different, such as a marriage certificate or divorce decree

There’s guidance available on how to carry out the right to work checks here.

Taking a copy of the documents

When you copy the documents:

  • make a copy that cannot be changed, for example a photocopy
  • for passports, copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including endorsements, for example a work visa
  • for biometric residence permits and residence cards (biometric format), copy both sides
  • for all other documents you must make a complete copy
  • keep copies during the applicant’s employment and for 2 years after they stop working for you
  • record the date the check was made

If in any doubt, please seek HR advice before proceeding. The significant case us employment law followers recall is that of Baroness Scotland. She was fined just half the £10k fine, £5k at the time (2009) when she was found not to have checked the id of her worker correctly. She didn’t have the passport copied but due to her position in society her testimony was believed. Would yours? No we don’t think so either. Read the story from the papers here.

If you need any assistance with this or any other aspects of HR or employment law please call us on 01527 909436

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