by Emma Quinn, Associate, Employment & Immigration Law at Eversheds Sutherland LLP (Ireland)
Right to work checks are an essential part of the HR onboarding process and, if not attended to carefully, can potentially land employers with hefty financial and criminal sanctions. In Northern Ireland, employers can face sanctions ranging from fines of £20,000 per illegal worker to criminal prosecution, whilst in Ireland, employers who employ individuals without the right to work can be subject to sanctions ranging from fines of €3,000 per illegal worker to criminal prosecution.
Republic of Ireland
For applicants to roles in the Republic of Ireland, right to work checks must be completed for all applicants to roles, even Irish and British citizens.
There is a distinction in Irish law between European Economic Area (“EEA”), UK and Swiss nationals and those individuals who are nationals from outside of the EEA, UK and Switzerland in terms of the immigration permissions and documentation that such individuals are required to hold in order to undertake employment within Ireland.
Depending on which category an individual falls within, he/she will be required to hold different documents to evidence a right to work in Ireland.
When carrying out a right to work check, we would recommend that you consider the following steps:
STEP ONE: OBTAIN
You should obtain original documents from the applicant. If an applicant is a non-EEA national, you should obtain their employment permit and their Irish Residence Permit.
Please note that the Department of Enterprise, Trade and Employment have ceased issuing employment permits by post and are issuing same by email going forward.
STEP TWO: CHECK
You must check the document provided is genuine and belonging to the applicant in question.
An employer will have a defence against an illegal working statutory breach if it took reasonable steps to establish that the employee has the correct right to work. The Workplace Relations Commission (“WRC”) does not prescribe what reasonable steps constitute. What is reasonable will depend on the circumstances. During Covid-19, our opinion was that virtual right to work checks would be reasonable where physical checks could not be carried out due to Covid-19 restrictions.
However, as all Covid-19 restrictions have now been lifted, virtual right to work checks should only be relied upon as a last resort and a repeat physical right to work check should be carried out wherever possible, and as soon as possible after the virtual check. There are some limited circumstances where a virtual right to work check, without a follow-up physical right to work check, would suffice – for example if a candidate will be working remotely and their location restricts an employer’s ability to carry out an in-person right to work check.
STEP THREE: COPY
You must make a clear copy of each document you have obtained from the applicant. We recommend that the individual who carried out the right to work check, signs and dates each document. The documents of non-EEA employees must be kept for a minimum of five years or for the duration of the period of employment. The documents of EEA, British and Swiss nationals should be kept for the period of time specified in your company’s retention policy.
For applicants to roles in Northern Ireland, right to work checks must be completed for all applicants to roles, even British and Irish citizens.
If you are conducting the right to work checks in house, rather than instructing an Identity Service Provider (“IDSP”), you must ensure you follow the three step procedure set out by the UK Home Office:
STEP ONE: OBTAIN
You must obtain original documents from the applicant from a list set out by the UK Home office (available here).
STEP TWO: CHECK
You must check the document provided is genuine and belonging to the applicant in question. Where an applicant has provided a passport containing a visa which allows them to work, you must check they are permitted to do the type of work on offer.
STEP THREE: COPY
You must make a clear copy of each document you have obtained from the applicant. This document must be kept for a minimum of two years, together with a secure record of the date on which you undertook the check.
About the author
Emma is an Associate in the Employment department at Eversheds Sutherland LLP (Ireland). She advises clients in both the public and private sectors on a wide range of issues affecting the employment relationship, from pre-employment matters through to termination of the employment relationship.
Emma’s advisory work includes drafting employment contracts, consultancy agreements, employment policies and termination agreements. Emma also regularly provides on-the-spot advice in relation to day-to-day matters to include grievances and disciplinary matters, absence management and performance issues, whistleblowing, working time, payment of wages, equality/discrimination and the enforcement of restrictive covenants.
Emma has experience in data protection matters and regularly advises clients in relation to data subject access requests and their obligations under the GDPR.