Avoiding Discrimination in Right to Work Checks
How do you avoid discrimination when doing right to work checks? Understand fair treatment and consistent processes.
Last updated: 30 January 2025
Right to work checks must be conducted fairly to avoid discrimination.
Discrimination Risks
How Discrimination Occurs
| Behaviour | Problem |
|---|---|
| Only checking some | Based on appearance |
| Different treatment | By nationality |
| Rejecting candidates | Without valid reason |
| Extra requirements | For some groups |
Protected Characteristics
| Characteristic | Relevant To RTW |
|---|---|
| Race | Most common risk |
| Nationality | Related to race |
| Ethnic origin | Related |
| Religion | May correlate |
The Golden Rule
Check Everyone Equally
| Principle | Application |
|---|---|
| Same process | For all |
| Same documents | Accepted |
| Same timing | Before start |
| No exceptions | Based on appearance |
Regardless of Appearance
| Don't Consider | When Deciding |
|---|---|
| Skin colour | Who to check |
| Name | Whether to check |
| Accent | How to check |
| Clothing | Extra scrutiny |
Consistent Process
What This Means
| Element | Same For All |
|---|---|
| Checklist | Standard form |
| Timing | Before start |
| Documents | Any on list |
| Recording | Same method |
Document Acceptance
| Accept | Don't Insist On |
|---|---|
| Any List A document | Passport specifically |
| Any List B document | Particular format |
| Valid combinations | One specific thing |
Common Mistakes
Only Checking Some People
| Mistake | Example |
|---|---|
| Foreign-sounding names | Only checking these |
| Non-white applicants | More scrutiny |
| Accented speakers | Additional checks |
| Foreign appearance | Extra requirements |
Different Standards
| Mistake | Example |
|---|---|
| Accepting some docs | From British-looking |
| Questioning others | From foreign-looking |
| Quick checks | For some |
| Detailed checks | For others |
Extra Requirements
| Mistake | Example |
|---|---|
| Requiring passport | When birth cert valid |
| Asking for more | Than on list |
| Additional proof | For some groups |
Legal Position
Direct Discrimination
| Occurs When | Example |
|---|---|
| Less favourable treatment | Because of race |
| Only checking some | Based on appearance |
| Different process | By nationality |
Indirect Discrimination
| Occurs When | Example |
|---|---|
| Policy disadvantages | Certain groups |
| No justification | For requirement |
| Requiring passport | Disadvantages some |
Consequences
| Risk | Penalty |
|---|---|
| Employment tribunal | Claim |
| Compensation | Unlimited for discrimination |
| Reputation | Damage |
| EHRC action | Possible |
Best Practices
Standard Checklist
| Use For | Everyone |
|---|---|
| Same form | All candidates |
| Same questions | All employees |
| Same process | Without exception |
| Documented | Consistently |
Training Staff
| Ensure Staff | Understand |
|---|---|
| Why consistent | Important |
| What documents | Acceptable |
| How to check | Everyone |
| What to avoid | Discrimination |
Audit Your Process
| Check | Whether |
|---|---|
| All checked | Every employee |
| Same way | Regardless of background |
| Records complete | For everyone |
| No patterns | Of different treatment |
Document Acceptance
List A Documents
| Accept Any Of | Don't Require Specific |
|---|---|
| British passport | Just one option |
| Birth cert + NI | Equally valid |
| Irish passport | Same standing |
| Other List A | All acceptable |
Don't Insist On Passport
| If Candidate Has | You Must Accept |
|---|---|
| Birth certificate | Plus NI evidence |
| Other List A | Valid document |
| Any acceptable doc | Cannot refuse |
List B Documents
| Accept Any Valid | Don't Discriminate |
|---|---|
| Any on list | Equally acceptable |
| Online check | For digital status |
| Whatever proves | Right to work |
Handling Refusals
Valid Refusal Reasons
| Can Refuse If | Legitimate |
|---|---|
| No acceptable documents | Cannot prove RTW |
| Documents fake | Reasonable belief |
| Person doesn't match | Document |
| Online shows no right | Verified |
Invalid Refusal Reasons
| Cannot Refuse Because | Discriminatory |
|---|---|
| Looks foreign | Appearance |
| Name sounds foreign | Prejudice |
| Accent | Irrelevant |
| Didn't bring passport | If other valid doc |
Interview Process
Don't Ask
| Avoid Asking | In Interviews |
|---|---|
| Where are you from? | Unless relevant |
| Are you British? | Checks come later |
| Immigration status | Early in process |
| Nationality questions | Premature |
When to Check
| Timing | Stage |
|---|---|
| After offer | Conditional |
| Before start | Actual check |
| Same for all | Candidates |
| Not at application | Too early |
Job Adverts
Avoid
| Don't Advertise | Why |
|---|---|
| British only | Discriminatory |
| UK citizens only | Unless justified |
| Must have passport | Unnecessary |
| Native speaker | May discriminate |
Acceptable
| Can Require | If Genuine |
|---|---|
| Right to work | In UK |
| Specific visa | If sponsoring |
| Language ability | If needed for role |
Case Studies
Example 1: Discriminatory Practice
| Situation | Problem |
|---|---|
| Only checking | Non-white applicants |
| British-looking | Not checked same way |
| Result | Direct discrimination |
Example 2: Document Insistence
| Situation | Problem |
|---|---|
| Requiring passport | From all |
| Some can't afford | Or don't have |
| Disadvantages | Certain groups |
| Result | Possible indirect |
Example 3: Correct Practice
| Situation | Approach |
|---|---|
| Check everyone | Same checklist |
| Accept any valid | List A or B document |
| Same process | Regardless of appearance |
| Result | Non-discriminatory |
Complaints and Claims
If Accused of Discrimination
| Step | Action |
|---|---|
| Review records | Show consistency |
| Check process | Was it followed? |
| Gather evidence | Of equal treatment |
| Seek advice | If claim made |
Defending Claims
| Evidence Helps | Shows |
|---|---|
| Consistent records | Everyone checked |
| Standard process | Applied equally |
| Training records | Staff informed |
| Audit trails | No patterns |
Summary
Key Principles
| Principle | Application |
|---|---|
| Check everyone | Same process |
| Accept valid documents | Any on list |
| Don't assume | Based on appearance |
| Be consistent | Always |
Avoid
| Never | Do This |
|---|---|
| Only check some | Based on looks |
| Require specific | Documents |
| Treat differently | By nationality |
| Make assumptions | About status |
Related answers
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Right to Work Checks: UK Employer Guide
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Statutory Excuse for Right to Work
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Frequently Asked Questions
- Can I be discriminatory when doing right to work checks?
- Yes, you can inadvertently discriminate by only checking certain employees based on appearance, name, accent, or perceived nationality. You must check everyone equally using the same process regardless of how 'British' they appear.
- Do I have to check British-looking employees?
- Yes. You must check all employees using the same process. Only checking people who 'look foreign' or have non-British names is direct race discrimination. Consistent checking of everyone is essential.
- What if someone can't provide the documents I expect?
- Accept any document from the official List A or List B - don't insist on specific documents. If someone can prove their right to work with acceptable documents, you cannot refuse them for not having a passport or other specific document.