Right to work rules have changed from 1st October. It is important that employers are aware of their obligations to ensure that all staff are eligible to work in the UK by carrying out right to work checks in the correct manner on prospective employees before employing them.
What are right to work checks?
All employers, no matter how big or small need to check that every individual they employ has the right to work in the UK. This must be carried out before that person starts their employment.
Since the online Right to Work Checking Service was launched in April 2018 employers have been able to conduct online right-to-work checks on eligible individuals such as, those with EU, EEA, or Swiss immigration status however all other right to work checks including for UK nationals had to be carried out in person.
How have right to work checks changed?
In March 2020, when the COVID-19 pandemic made in person right to work checks difficult to carry out, the Government introduced a temporary easement to the rules around right to work checks, allowing employers to carry out the checks remotely by using video calls. However, this process increased the potential for fraudulent documents to be used, therefore from 1st October 2022 employers will need to return to completing their right to work checks in person or by using a certified identification document validation technology service provider.
Employers are no longer going to be able to verify that an individual is eligible to work in the UK by checking their passport over video call.
Businesses will now have 3 ways of performing a right to work check:
- Manual – face to face with a candidate
- Digital – using the services of an identity service provider
- Online – through the Home Office
It is important that businesses are aware of these changes, as a failure to carry out the checks correctly could result in them facing unlimited fines of up to £20,000 per illegal worker if the employer is found to have not carried out the correct checks or not completed them properly. Employers can also receive prison sentences of up to 5 years and unlimited fines if they knowingly employ or have ‘reasonable cause to believe’ does not have the right to work in the UK.
Additionally, employers should be aware that despite common misconceptions, driving licences issued by the DVLA are not accepted as right to work documentation. This is due to the fact that they do not confirm the holder’s nationality.
What Hegarty Solicitors suggest for employers
We advise that the initial checks are carried out at the earliest opportunity and not left until after a person has been offered the position.
We also advise that if employers choose to use an Identity Service Provider (IDSP) to carry out their checks, although it is not mandatory for employers to use a certified IDSP, the employer will need to be satisfied that their chosen solution provider is able to satisfy a minimum of a Medium Level of Confidence. A list of certified providers is available on GOV.UK. Employers must also retain a clear copy of the Identification Document Validation Technology (IDVT) identity check for the duration of employment and for two years after the employment has come to an end.
It is also important to note that employers must not treat less favourably those who do not hold a valid passport, or do not wish to prove their identity using an IDSP. Employers must provide individuals with other ways to prove their right to work and should carry out a manual document-based right to work check in these circumstances.
To conduct a manual document-based right to work check there are three steps employers must carry out:
- Obtain original documents – a specified list of acceptable documents can be found on gov.co.uk.
- Check the documents are genuine and the person presenting them is the prospective employee.
- Make copies of each document, maintain a secure record of the date the checks were made and retain the copies for the duration of the employment of the worker and for two years afterwards.
Employers need to complete all three steps before employment commences in order to establish a statutory excuse.
It may also be advisable to update your businesses on-boarding procedures to reflect the new rules as well as including right to work clauses in employment contracts so that if needs be, an employment can be terminated.
Another tip from us is to provide training for staff responsible for hiring and create a guide on how to conduct right to work checks so that all staff fully understand what needs to be covered in the hiring process.