Why Right to Work checks aren't consistent

Immigration is back in the headlines and closely linked to this is the right to work in the UK, says Theresa Mimnagh of recruitment law firm Lawspeed.

To identify people genuinely entitled to work here from those that may not be, this year in May and July the government issued a raft of guidance notes and codes on the steps that need to be taken by all employers, including the requirement for face-to-face checks of potential employees.

However there is and always has been a gaping hole in this policy. The clue is in the word “employer”. The obligation does not apply to anyone who is not an “employer”, so hirers are not employers if they engage workers who are not employees. There are no rules for these hirers at all. Recruitment businesses which engage temporary agency workers are also not employers if the engagement contracts they use are not employment contracts. Since the latter model is typical in the UK recruitment industry, it would seem that the right to work checks do not apply to those recruitment agencies.

Having said that, it should be noted that UK recruitment businesses that supply temps have to check the identity of the workers and any authorisation that the hirer considers necessary or is required by law, before the worker is supplied. This regime, included in agency regulations, fortunately does not require face-to-face meetings. This remains a source of relief for agencies that engage workers who live far and wide, since face-to-face meetings are simply not practical in those circumstances.

My conclusion is that there is a lack of consistency in right to work checks dependent on the type of contract used, which some less scrupulous businesses may take advantage of. Best practice for recruiters is to carry out the checks in any event.

Editor's Note: Related Reading -

Contractors' Questions: Can I claim Right to Work postage costs?

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