Right to work checks: a transgender perspective
Temporary Covid concessions allowing employers to conduct right to work checks remotely have come to an end. With employers now expected to complete prescribed right to work checks for all employees, business immigration partner Joanne Hennessy and senior associates John Smith and Hannah Eades from TLT provide guidance on how the checks may present challenges for transgender individuals seeking employment in the UK.
What are right to work checks?
Employers are required to conduct right to work checks on all employees (regardless of their nationality) prior to their start date to check whether they have the right to work in the UK. An organisation found to be employing an illegal worker – possibly as result of failing to comply with the strict guidelines of the checks – could be exposed to a civil penalty of up to £20,000 per breach. Compliant right to work checks provide employers with a statutory excuse to civil liability for employing illegal workers. Other risks associated with incorrectly carrying out right to work checks can include:
- Criminal liability
- Sponsor licence suspension or revocation
- Disqualification of directors l Business interruption/closure
- Invalidated insurance
- Reputation damage
Challenges presented by right to work checks for transgender individuals
The right to work checks guidelines dictate that employers are obliged to check that the photographs and dates of birth of potential employees are consistent across all documentation, as well as with the person’s appearance. This can create problems for individuals in the process of transitioning or who have transitioned but haven’t updated their identity documents, such as their passport. Furthermore, the right to work guidance does not currently explicitly state that gender identity certificates – to demonstrate gender transition or preference, can be accepted by employers.
Under the Equality Act 2010, the transgender community has protections at work that employers should familiarise themselves with. Employers must not:
- treat a transgender person less favourably than someone who is not transgender (this is called direct discrimination)
- apply a provision criterion or practice (PCP) to a transgender person that puts them, and other transgender people, at a particular disadvantage when compared to those who are not transgender, unless the PCP is a proportionate means of achieving a legitimate aim (this is called indirect discrimination)
- subject transgender people to unwanted conduct related to their transgender status that has the purpose or effect of violating the transgender person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (this is called harassment)
- subject transgender people to unwanted conduct for raising a complaint that they have been discriminated against (this is called victimisation)
Breaches of any of the above would entitle a transgender individual to bring a claim in an employment tribunal for damages. Bearing this in mind, a transgender person may argue that employers who require them to provide proof of identify amounts to harassment or potentially indirect discrimination, because to do so would force them to reveal their assigned gender.
It is therefore important that requests to obtain copies of right to work documents be carried out sensitively. Employers should explain the purpose of the right to work checks to the candidate carefully and give them clear assurances that the documents will be handled sensitively and kept in the strictest confidence. We would advise employers to review their right to work policies to ensure they make specific accommodations for transgender people. In particular, policies should make it clear that:
- employees or applicants can raise concerns about the right to work checks with HR and, wherever possible, employers will do their utmost to accommodate concerns;
- all right to work check documentation will be handled in confidence and only recorded for compliance purposes on the employee’s personnel file.
Managers and HR personnel who carry out right to work checks should be provided with diversity and inclusion training so that they are abreast of the challenges faced by the transgender community during the right to work process.
Senior Associate on the TLT Employment Law Team
Business Immigration Partner at TLT