A restaurant chain in London was taken to an employment tribunal in 2024 after a Romanian job applicant alleged racial discrimination. She had been asked to provide proof of her right to work at the point of application — before interview, before any job offer, and before any other candidates had been asked for the same documentation. British applicants at the same stage were not asked. The tribunal found that the employer had applied the right to work check selectively, based on the applicant's perceived nationality, and awarded compensation for direct race discrimination.
The employer had not acted with malicious intent. The hiring manager later explained that she "knew" the British applicants had the right to work and "just wanted to check" the overseas applicant's status early. In her mind, she was being efficient. In law, she was discriminating.
This case illustrates one of the most difficult tensions in UK employment compliance: the legal obligation to verify every employee's right to work sits alongside the legal obligation not to discriminate on the basis of race, nationality, or ethnic origin. Getting either one wrong carries serious consequences. Getting both right requires a systematic process that removes human judgment from the equation.
The dual obligation
The legal framework places two simultaneous demands on employers.
The Immigration, Asylum and Nationality Act 2006 requires employers to check the right to work of every person they intend to employ, before employment begins. Failure to do so — or employing someone without the right to work — can result in civil penalties of up to £45,000 for a first offence and £60,000 for repeat offences. The check must be conducted for every employee, regardless of nationality, appearance, or any other characteristic.
The Equality Act 2010 prohibits direct and indirect discrimination in employment on the grounds of race, which includes nationality, ethnic origin, and national origin. Treating a job applicant or employee less favourably because of their perceived nationality — including by applying different processes or requirements to them — is unlawful.
The Home Office employer's guide to right to work checks is explicit on this point: employers must check all prospective employees, not just those they believe to be foreign nationals. Selective checking is not just discriminatory — it also fails to establish the statutory excuse that protects against civil penalties, because the excuse requires a compliant check to have been conducted for the specific individual.
The Equality and Human Rights Commission (EHRC) has published specific guidance on conducting right to work checks without discriminating. The guidance makes clear that the timing, process, and requirements of the check must be identical for all candidates.
Where employers go wrong
The discrimination failures in right to work checking are rarely deliberate. They arise from informal processes, unconscious assumptions, and the gap between what a policy says and what actually happens on the ground.
Selective timing. The most common failure pattern. Checking some candidates' right to work before interview, while checking others only after a conditional offer is made. If the pre-interview checks correlate with perceived nationality or ethnicity — and they almost always do — the employer has created a discriminatory process, regardless of intention.
Different document requirements. Asking candidates with non-British-sounding names to provide a passport, while accepting a birth certificate or driving licence from candidates with British-sounding names. Or requesting a share code from candidates who "look like they might need one" while not requesting anything from others. The right to work check process prescribes acceptable documents in List A and List B of the Home Office guidance. The employer should accept any valid document from the prescribed list, applied consistently.
Casual verification for some, formal for others. Treating the right to work check as a genuine compliance exercise for overseas nationals while treating it as a formality for British citizens. This can manifest as thorough document scrutiny for one group and a cursory glance for another, or as detailed record-keeping for one group and perfunctory notes for another.
Commenting on documents or status. Asking candidates questions about their immigration history, how long they've been in the UK, whether they "plan to stay," or expressing surprise that they have the right to work. These questions are not part of the prescribed check process and, in a tribunal, will be used as evidence of discriminatory intent or assumptions.
Pre-employment screening bias. Using recruitment platforms or screening processes that filter candidates by nationality before they reach the interview stage. While employers are entitled to specify that candidates must have the right to work in the UK, filtering based on nationality (rather than right to work status) is discriminatory — because British nationals are not the only people with the right to work in the UK.
Real tribunal outcomes
Employment tribunals have consistently found against employers who apply right to work checks inconsistently. Several patterns emerge from reported cases.
Osborne Clarke LLP v Purohit (2009). A leading case in which the Employment Appeal Tribunal held that an employer's request for proof of right to work from a candidate who appeared to be of Indian origin, at a stage when British candidates were not asked, amounted to direct race discrimination. The tribunal noted that the check itself was lawful — the discriminatory element was the selective application.
Cases involving conditional offers. Multiple tribunal decisions have established that the right to work check must happen at the same stage of the recruitment process for all candidates. Making a conditional offer subject to right to work verification is lawful — but only if every conditional offer is subject to the same condition, not just offers made to candidates who appear to be foreign nationals.
Post-employment checks applied selectively. Some employers have been found to conduct follow-up right to work checks on employees they perceive to be overseas nationals while not conducting any follow-up checks on others. While follow-up checks are legally required only for employees with time-limited permission to work, the manner in which employers identify which employees require follow-up has been scrutinised. Using appearance or accent as the trigger, rather than documented visa expiry dates, is discriminatory.
The EHRC framework for non-discriminatory checking
The EHRC guidance establishes clear principles for conducting right to work checks without discrimination. These principles should form the basis of every employer's process.
Check everyone, at the same stage. The right to work check should occur at a defined point in the recruitment process — typically after a conditional offer has been made — and should be applied to every candidate who reaches that point. No exceptions. No early checks for some candidates. No deferred checks for others.
Use the same process for everyone. The process for conducting the check — which documents are accepted, how they are verified, what records are created — must be identical regardless of the candidate's apparent nationality. If you verify British citizens using a certified IDSP (Identity Service Provider), you should use the equivalent digital process for non-UK nationals (the Home Office online checking service with a share code). If you check documents manually, the same scrutiny should apply to a British passport as to a biometric residence card.
Record consistently. The documentation created during the check — copies of documents, verification dates, share code confirmations — should be the same format and level of detail for all employees. An audit trail that shows detailed records for overseas nationals and cursory records for British nationals is evidence of differential treatment.
Train everyone involved in recruitment. The hiring manager, the HR team, the recruiter, and anyone who interacts with candidates during the recruitment process should understand that selective checking is discriminatory. This is not optional guidance — it is a legal requirement. A single line manager who asks a candidate "do you need a visa to work here?" at interview stage can create tribunal liability.
Do not ask about immigration status at interview. The interview is for assessing suitability for the role. The right to work check is a separate, standardised process that happens after the interview. Mixing the two creates risk. An interviewer who asks about visa status during the interview has introduced a discriminatory element to the selection process, even if the right to work check itself is conducted properly later.
Why systematic processes remove the risk
The common thread in discrimination cases is human judgment. A hiring manager decides that a particular candidate "probably needs checking." A recruiter assumes that a British-sounding name means no check is needed. An HR officer applies more scrutiny to documents she is less familiar with.
The solution is to remove judgment from the process entirely. A systematic, technology-driven approach treats every candidate identically because the system does not know — and cannot act on — the candidate's nationality, appearance, or name.
Automated triggering. The right to work check is triggered automatically at the conditional offer stage for every candidate. The system does not distinguish between candidates. It does not know who "looks British" and who does not. Every candidate receives the same request, at the same time, through the same channel.
Standardised document acceptance. The system accepts documents from the prescribed lists. A British passport is processed through the same workflow as a biometric residence permit. A share code verification produces the same type of record as an IDSP check. The output is a standardised compliance record, regardless of the input document.
Consistent follow-up scheduling. For employees with time-limited permission to work, the system automatically schedules follow-up checks based on the documented expiry date. The trigger is the date, not the person. This eliminates the risk of follow-up checks being applied based on perception rather than data.
Audit-ready evidence of consistency. If a discrimination claim is made, the employer can demonstrate that the process was applied identically to all candidates. The system logs show the same steps, the same timing, and the same scrutiny for every person. This is the strongest possible defence — not an assertion that "we treat everyone the same," but evidence that the system enforces identical treatment.
The intersection with the Fair Work Agency
The Fair Work Agency has been given a broad mandate that includes both immigration enforcement and employment rights. This means that the same body now oversees both right to work compliance and employment equality.
In practice, this creates a heightened risk for employers who check selectively. A Fair Work Agency inspection that finds right to work checks conducted only for overseas-appearing staff will raise both an immigration compliance concern (failure to check everyone, resulting in no statutory excuse) and a potential discrimination concern.
The FWA's consolidated enforcement model means that failures in one area are more likely to trigger investigation in another. An employer who demonstrates systematic, consistent checking satisfies both regulatory requirements simultaneously.
Building a non-discriminatory RTW process
The practical steps are straightforward.
1. Define the trigger point. Decide at which stage of the recruitment process the right to work check will be conducted. Best practice is at the conditional offer stage. Document this in your recruitment policy and communicate it to everyone involved in hiring.
2. Use the same communication. Every candidate who reaches the trigger point should receive the same communication — the same email template, requesting the same information, with the same deadline. Personalised messages that vary by candidate create risk.
3. Implement digital verification as the default. The Home Office online checking service and certified IDSPs provide standardised, auditable processes that treat every candidate the same way. Digital verification removes the subjectivity of manual document inspection.
4. Train and re-train. Annual training for everyone involved in recruitment. The training should include real examples of discrimination findings — not to frighten people, but to illustrate how easily informal processes create legal liability.
5. Audit your own process. Periodically review your right to work check records. Are checks being conducted at the same stage for all candidates? Are the records consistent in detail and format? If patterns emerge that correlate with nationality or ethnicity, you have a process problem that needs immediate correction.
Certifyd's compliance portal applies the same verification workflow to every employee — automated triggering, standardised document processing, consistent audit trails — ensuring that your right to work process is non-discriminatory by design, not just by intention. It gives you the evidence of consistent treatment that both the Home Office and the EHRC expect. See how it works.