Most employers only learn what a statutory excuse is after a penalty notice has already arrived.
Employers may have checked a worker’s documents, kept a copy, and assumed that was enough. The Home Office requires you to follow the exact prescribed process laid down in the Code and Guidance.
The good news is that the process itself is well defined. If done correctly, it can protect your business.
What is a statutory excuse?
A statutory excuse is a legal defence against a civil penalty for illegal working. If you carry out the prescribed right to work check correctly, before employment starts, and retain evidence, you should not be liable for a penalty even if the worker is later found to have no right to work.
Liability does not depend on intent. Under the Code of Practice in force since 13 February 2024, fines can reach up to £45,000 per worker for the first breach and up to £60,000 for a repeat breach within three years.
What does the correct process look like?
For most non-British, non-Irish workers with digital status, this means the share code route.
- Request the share code. Ask the worker to generate their code through their UKVI account.
- Use the employer-facing checking service. Enter the code yourself at the official GOV.UK employer service. Accepting a screenshot or PDF from the worker does not establish a statutory excuse. Only a check run through the correct employer-facing portal counts.
- Complete the check before day one. A check carried out after a worker has already started does not establish a statutory excuse for that period, regardless of the result.
- Save and retain the result. Store the confirmation page securely for the duration of employment and for two years afterwards.
- Track expiry dates. Where permission is time-limited, a follow-up check must be completed before that date. Missing it removes your protection for the period after expiry, even though the original check was valid.
What if the worker cannot provide a share code?
Where a worker has an outstanding application, appeal, or holds an Application Registration Card, use the Home Office Employer Checking Service instead. A successful check produces a Positive Verification Notice, which provides a six-month statutory excuse. A follow-up check is then required before it expires.
For employers managing high volumes of hires, this is often where gaps appear under time pressure.
How ZH Law can help
We advise employers on right to work compliance, auditing check processes against current Home Office requirements, and representing businesses that have already received a civil penalty notice.
For businesses also holding a sponsor licence, a civil penalty finding can trigger a wider compliance review and put the licence at risk of suspension or revocation.
Mr. Zainul Jafferji has over 27 years of experience in immigration and public law. We help businesses get the process right before enforcement happens, and challenge the penalty where it does.
Frequently Asked Questions
- Does a statutory excuse protect me if the worker lied about their status?
Yes, provided the prescribed check was completed correctly before employment started. - Can I accept a screenshot of the share code result from the worker?
No. Only a check carried out through the official employer-facing GOV.UK service establishes a statutory excuse. - What happens if I miss a follow-up check on a time-limited visa?
Your statutory excuse lapses from the expiry date, leaving you exposed to a penalty for that period even if the original check was valid.
Concerned about your right to work compliance? Speak to us today.
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London: 0203 887 7306 | Leicester: 0116 365 6400 | enquiries@zh-law.co.uk
This article is for information purposes only and does not constitute legal advice. For advice specific to your situation, please contact ZH Law.
