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.

Entitlement 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 and a court can impose an unlimited fine and/or 2 years' imprisonment for each illegally employed individual.

In addition, an employer (or their manager) may be liable to a civil penalty for unlawfully employing a worker who does not have a right to work in the UK. Depending on the circumstances, the Home Office may issue a civil penalty of up to £20,000 for each illegally employed individual.

Obtaining proof of right to work in the UK & avoiding liability

The easiest way for you to check an individual's right to work is to view it online. You won't need to check any documents and you won't face any penalties if the individual is later found to not have a right to work. However, this service is only available if the individual has one or more of the following:

• a biometric residence permit
• a biometric residence card
• 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, they can give you a 'right to work share code', which they may be able to get by using the government's prove your right to work service.

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.

If they can't or won't give you a share code, they'll need to show you at least one document that demonstrates their right to work in the UK. You should inform all candidates to bring with them to the interview documentary evidence of this. Suitable documents are set out in 2 lists provided by the Home Office, known as 'List A' and 'List B', published in their Right to work checklist.

You should also 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 the courts and tribunals when determining any legal liability.

Further information and guides

The code should be read in conjunction with the following Home Office guides:

• An employer's guide to right to work checks
• Avoiding discrimination while preventing illegal working
• Employing EU citizens in the UK

Coronavirus update: As a result of the COVID-19 pandemic, the UK government has introduced temporary changes to how right to work checks can be made. See our Coronavirus (COVID-19) section under 'Amendments to right-to-work checks.'