Right to work checks: a transgender perspective

Although nowadays most businesses champion diversity and inclusion in the workplace, transgender individuals continue to face a myriad of challenges at work.

In fact, before transgender individuals even start working for a business, the onboarding process can create challenges for those who have transitioned (or are in the process of doing so). One particularly challenging area can be right to work checks. Whilst UKVI have published guidance regarding gender identity markers for those individuals applying under the EU Settlement Scheme they haven’t provided any wider guidance for other areas of UK immigration such as in relation to the conduct of right to work checks.

Why does a business do right to work checks?

Employers are expected to complete prescribed right to work checks against all recruits (regardless of nationality) to ensure they only employ individuals with the right to work in the UK.

There is no standalone liability for failure to complete compliant checks. However, failure to do so will leave an employer open to a civil penalty (of up to £20,000 per breach) if found to be employing an illegal worker. Compliant right to work checks provide employers with a “statutory excuse” to civil liability for employing illegal workers.

Other risks of failing to carry out right to work checks can include:

• Criminal liability
• Sponsor licence suspension or revocation
• Disqualification of directors
• Business interruption / closure
• Invalidated insurance
• Reputational damage (the Home Office publish details of those subject to civil enforcement action).

What issues are presented by the current employer RTW guidance?

Employers are required to comply with strict guidelines set by UKVI when they conduct right to work checks. Failure to fully comply with these guidelines can jeopardise their chances of obtaining a statutory excuse which, as noted above, can have numerous implications including a civil penalty.

As part of this process UKVI guidance makes it clear that when carrying out a check against right to work documentation the employer “must check that the photographs and dates of birth are consistent across documents and with the person’s appearance in order to detect impersonation”.

This can create problems for an individual who is in the process of transitioning/has transitioned and has not updated their identity documents, such as their passport. This is because names and photos may not match with the individual that the right to work check has been carried out against. In fact, there is no legal requirement for transgender persons to update their gender information. The right to work guidance as drafted doesn’t currently explicitly state that gender identity certificates, to demonstrate gender transition or preference, can be accepted by employers.

When carrying out the check the employer will want to ensure they are reasonably satisfied the reason for any name / gender discrepancies are explained. However, given that this is an extremely sensitive area it would be helpful to have guidance in place to provide clarity for employers. This would be invaluable in helping employers sensitively navigate the situation and minimise any potential employment claim risks (which are outlined below).

Potential employment law implications

The transgender community are granted numerous protections at work by the Equality Act 2010. For example:

1. an employer must not treat a transgender person less favourably than someone who is not transgender (this is called “Direct Discrimination”);

2. an employer must not 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”)

3. an employer must not subject transgender people to unwanted conducted, 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”)

4. an employer must not subject transgender people for raising a complaint that they have been discriminated against (this is called “Victimisation”).

Breach of any of the above protections would entitle a transgender person to bring a claim in an employment tribunal for damages. There is currently no cap on the compensation that such a claimant could be awarded if they are successful in their claim.

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. If such a claim was brought, the Tribunal would consider all the circumstances, including the way in which the employer has handled its request. Therefore, requests to obtain copies of right to work documents must 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.

Ultimately if a transgender person does not wish to give right to work documentation, employers will need to consider their options carefully. Employers will need to balance accommodating the transgender person’s wishes with the risk of potential civil or criminal penalties from the Home Office (as outlined above). If employers ultimately decide to renege on the employment offer in such circumstances, in light of the risk of penalties, they should take advice to avoid discrimination.

Suggested action points

In light of the above issues, we would advise that employers review their right to work policies and procedures to ensure that they make specific accommodations for transgender people. In particular, the policy should make it clear that:

• if an employee or applicant has any concerns regarding the right to work check process, they should raise their concerns with HR and, wherever possible, the employer will do their utmost to accommodate their concerns;
• all right to work check documentation will be handled in the strictest of confidence and maintained only as necessary for compliance purposes on the employee’s personnel file.

All managers and HR personnel who carry out right to work checks should also be provided with diversity and inclusion training so that they are abreast of the potential issues that the transgender community face during the right to work process and so that they are equipped to deal with such issues as and when they arise.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.