Right to Work checks in schools: common errors and how to avoid them

We routinely support our education sector clients with questions on Right to Work checks, providing guidance on how to correctly establish or retain a ‘statutory excuse’ against sanctions under the UK's illegal working regime. Whilst the guidance itself describes the checks as “simple”, we frequently see the same issues arise in practice. We have therefore highlighted some of the most common errors, together with practical steps to avoid them.

Late completion of checks
Right to Work checks must be conducted before an individual commences work for the school. This should form a routine part of any pre-appointment checks and be completed for anyone engaging in regulated activity with children. It is not sufficient for the checks to be completed around the time an individual joins - they must be conducted and records held in advance of any role starting.

Not checking agency and supply staff
The scope for Right to Work checks is wider than those who are directly employed by a school. In line with the Keeping Children Safe in Education guidance, all schools (and colleges) must verify a person’s right to work in the UK, where they are being appointed to engage in regulated activity relating to children. We recommend including agency and supply staff, particularly where a school also holds a Sponsor Licence, as it is not sufficient to rely on checks conducted by the agency, or to exempt individuals on a temporary/third-party contract.

Right to Work checks not properly completed
Even where checks are carried out, we often see issues with how they are documented. For online checks using a share code, schools must ensure that the Home Office online check has been accessed and that a clear record is retained, including confirmation of the individual’s right to work, the date the check was conducted, and evidence that the result has been reviewed. In practice this means that all appropriate tick boxes should be completed.

For manual checks, copies of the original documents must be taken in a format that cannot be altered and must be clearly signed and dated to confirm when the check was undertaken. Failure to sign and date documents, or to clearly record the date of the check, may invalidate the statutory excuse. It is essential that records are complete, consistent and capable of demonstrating compliance if audited.

Not completing follow up checks
For some individuals, they will only be able to provide a time-limited Right to Work check. This means their immigration permission has an expiry date, and the school must track this to ensure a follow-up Right to Work Check is completed prior to the individual's permission expiring. A suitable internal tracking system should be used to monitor upcoming expiry dates and arrange new evidence of the individual's ongoing permission to work in the UK.

Where checks are completed correctly by a school, they are able to provide a ‘statutory excuse’ which protects them from prosecution if an individual is found to not have permission to work in the UK. This in turns avoid the expense, reputational damage, and staffing continuity difficulties which a penalty under the illegal working regime would bring.

We are very happy to assist clients with ensuring they have a robust system in place to record and monitor Right to Work checks. Please do get in touch with our Immigration Team for further support.