Right to work checks - is your Academy Trust compliant?

A correctly conducted right to work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the employment.

The Employer’s guide to right to work checks was recently updated in October 2023 and can be found here.

One issue we have identified at PLR through our internal audit reviews is where Trusts are exposing themselves to civil penalties by not noting the date on which they conducted the check. This is a “must” requirement of performing such checks.

This can either be by making a dated declaration on the copy or by holding a separate record securely—for instance, on an HR database. The date may be written on the document copy as follows: “the date on which this right to work check was made: [insert date]”, or a manual or digital record may be made at the time you conduct and copy the documents that include this information.

An employer must be able to show this evidence if requested to do so to demonstrate that they have established a statutory excuse. An employer must repeat this process in respect of any follow-up check.

As an employer, you may face a civil penalty if you do not record the date on which the check was performed. Simply writing a date on the copy document does not confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also make a record stating that this is the date on which you conducted the check.

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