Q&As

When should an employer ask a prospective employee/worker if he has the right to work in the UK?

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Published on LexisPSL on 08/01/2015

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • When should an employer ask a prospective employee/worker if he has the right to work in the UK?
  • Scope of this answer
  • Relevant Codes of Practice
  • Employers’ liability for illegal working
  • Treating candidates the same way at each stage
  • Information provided to applicants
  • The application form
  • Short-listing and interview
  • Conditional offer
  • Evidence the employer should obtain

When should an employer ask a prospective employee/worker if he has the right to work in the UK?

Scope of this answer

This answer covers:

  1. the need to ask all job applicants if they need permission to work in the UK, to avoid the penalties for employing someone illegally

  2. the need to do so carefully to avoid race discrimination claims

  3. the checking process in relation to the right to work

  4. the consequences of getting it wrong in terms of potential discrimination claims or employing a worker who does not have permission to work.

For further general information on this topic, see:

  1. The right to work in the UK—settled status and British citizenship

  2. EEA nationals—rights [Archived]

  3. EEA nationals—restrictions [Archived]

  4. Non-EEA nationals—permission to enter and work in the UK [Archived]

  5. Illegal workers—civil and criminal sanctions

  6. Pre-employment checks—Establishing the right to work in the UK

Relevant Codes of Practice

You and your client should consider the provisions of:

  1. the Code of Practice containing guidance on preventing discrimination and

  2. the Code of Practice on preventing illegal working: Civil penalty scheme for employers

The latter provides clear guidance on the important document-checking process.

A breach of either of these codes can be taken into account by a court or tribunal when considering a relevant claim.

Employers’ liability for illegal working

Employers carrying out the right checks and obtaining the right documents before employment starts will have a statutory

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