Recruitment
Recruitment
Contents
Discrimination
In advertisements for new staff and during interviews, you must not say anything that could be seen as discrimination against any prospective employee on grounds of sex, gender reassignment, race, colour, ethnic background, marital status, disability, trade union membership and/or activity, age, religion/belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland) or sexual orientation.
You should record your reasons for not offering a job to any unsuccessful applicant, ensure that this information is retained and that it cannot be interpreted as showing an intention to discriminate.
To avoid a potential claim of discrimination, the employer should treat every applicant in the same way.
Sometimes a job will require an applicant of a particular sex, race, age, religion/belief or sexual orientation. As long as this is a genuine requirement or qualification for the job then it will not be unlawful to discriminate against certain sectors of society.
If you feel that this may apply to you then we advise that you seek legal advice.
Application form
Each candidate should be asked to complete a job application form. Completed application forms are useful in compiling personnel records, assisting the objective selection of suitable candidates and providing a framework for interviews.
For more information on application forms, including your responsibilities under data protection laws, see our Job application form section.
Checking entitlement to work in the UK
You must make pre-employment checks to find out if candidates you may employ have a right to work in the UK.
It is a criminal offence for an employer to knowingly employ a person aged 16 or over who does not have permission to live and work in the UK. A court can impose various penalties including:
- an unlimited fine
- up to 5 years' imprisonment
- civil penalties (on the employer or a manager working for them) of £45,000 for the first breach and £60,000 for repeat breaches, for each illegally employed individual.
We recommend asking all candidates to bring evidence of their right to work to their interview. Or, at the very latest, before a successful candidate's employment starts.
Take care not to discriminate while carrying out your checking responsibilities and follow the Code of practice on preventing illegal working. Although the code doesn't impose a legal duty on you to follow it, it may be used as evidence by courts and tribunals when deciding if you were liable.
To prove a candidate's right to work in the UK, they'll need to show you one or more of the documents from categories known as 'List A' and 'List B'. These are set out in the government guidance Right to work checks: an employer's guide.
Documents from List A mean that they have a continuous right to work in the UK. Documents from List B mean they have a time-limited right to work in the UK (either until immigration permission ends or up to a limit of 6 months).
There are different ways to check an individual's right to work, depending on their country of citizenship.
British or Irish citizens
You can check their right to work in the UK manually or by using a certified identity service provider (IDSP).
Manual checks
These require you to:
1. See one or more of the original documents from List A (this will usually be a passport).
2. Check the document in the physical presence of the holder to establish the following:
- Does it belong to them? Is the photo, name and date of birth consistent across all documents you have seen? Note that the reasons for any difference in names across documents can be explained by providing further evidence, such as an original marriage certificate, divorce decree absolute or deed poll document.
- Is the document genuine? Are there any signs that it has been tampered with?
3. Photocopy all the documents you have seen. It's recommended that you write something like Date on which this right-to-work check was made: [insert date] on each copy. The copies must be clear and in a format that cannot be manually altered.
4. Securely keep the copies either electronically or as a hardcopy for the duration of the employment and for 2 years after it ends.
Using a certified IDSP
An IDSP provider will use identity document validation technology to get evidence of the prospective worker's identity, checking that it is valid and belongs to the person who is claiming it. It can be used for British and Irish citizens who have a valid passport (including Irish passport cards).
A list of certified IDSP providers is available on GOV.UK.
Warning: You must not treat the prospective worker less favourably if they do not hold a valid passport, or don't want you to prove their identity using an IDSP. You must perform a manual check instead.
The usual process when using an IDSP is:
1. You make your request and the IDSP checks the validity of the documents.
2. It then gives you the verification information, giving the results as a range of standards of confidence. The Home Office recommends that employers only accept checks returning a minimum of Medium Level of Confidence. Do a manual check if it doesn't.
3. You must then:
- Check that the photograph and any biographic details (e.g. date of birth) used and then provided by the IDSP match the person being hired (to check they are not an imposter). You must also be reasonably certain that the IDSP carried out their checks in accordance with the government guidance.
- Keep a clear copy of the IDSP verification for the duration of the candidate's employment and for 2 years after it ends.
Citizens from elsewhere
Online checks
You can use the Home Office's online service to check an individual's right to work, but only if the individual has one or more of the following:
- a biometric residence permit
- a biometric residence card
- an eVisa (if they used the UK Immigration: ID Check app)
- status issued under the EU Settlement Scheme
- status issued under the points-based immigration system
- a British National Overseas (BNO) visa
- a Frontier workers permit.
If they do, and if you have received a share code from them, you must not manually check their documents and only use the online service. You won't face any penalties if the individual is later found to not have a right to work.
The usual process is as follows:
1. The prospective worker gives you a right-to-work share code, which they may be able to get by using one of the government's online services: Prove your right to work to an employer or View and prove your immigration status (the code is usually 9 digits).
2. You then enter this code and their date of birth on the online service.
- Check that the photograph matches the individual (this can be done with the person being there in person or via a live video call).
- Check that they have a right to do the role being recruited for and any time limit on their right to work in the UK.
- Keep evidence of the check (this should be the profile page confirming the individual's right to work - the page that includes the individual's photo and date on which the check was conducted).
If they can't or won't give you a share code, you'll need to carry out a manual check instead.
Note that you can't demand that they give you a share code. They have the right to ask you to check their documents manually instead. You can't treat them any differently as a result.
Manual checks
These require you to:
1. See one or more of the original documents from List A or List B (see government guidance for these lists).
2. Check the document in the physical presence of the holder to establish the following:
- Does it belong to them? Is the photo, name and date of birth consistent across all documents you have seen? Note that the reasons for any difference in names across documents can be explained by providing further evidence, such as an original marriage certificate, divorce decree absolute or deed poll document.
- Is the document genuine? Are there any signs that it has been tampered with?
- Have any expiry dates for permission to be in the UK passed?
- Are they are allowed to do the type of work you're offering? Note that students may have limited permission to work during term-times, so you must also get a copy their academic term and vacation times covering the duration of their employment.
3. Photocopy all the documents you have seen (including any documents explaining differences in their name and any extra documents needed for students) and keep them. It's recommended that you write something like Date on which this right-to-work check was made: [insert date] on each copy. The copies must be clear and in a format that cannot be manually altered.
4. Securely keep the copies either electronically or as a hardcopy for the duration of the employment and for 2 years after it ends.
Follow-up checks
If you receive a document from List B, follow-up checks will be required before the person's permission expires. If they have an outstanding application or appeal in the immigration system, you should perform a check with the Home Office Employer Checking Service (ECS) to verify it.
Protection from a civil penalty
Following the above checks should mean you have a statutory excuse and so won't face any penalties if the individual is later found to not have a right to work.
Note that in certain circumstances, you will need to contact the ECS to establish a statutory excuse. Details of when you'll need to use the ECS are in the government guidance.
Further information and guides
There are additional Home Office guides: