ADVICE & OPINION
COMPLIANCE
RIGHT TO WORK CHECKS Nicola Smyrl, a partner in the Luton O ce of Taylor Walton who
In association with
advises employers and employees on a wide range of employment
related issues, warns employers to takes steps to prepare now for
changes to right to work checks https://taylorwalton.com
The Government has recently announced
changes to the ways that employers can
perform ‘right to work ’ checks. There have been
various press reports in recent weeks warning
employers that these changes will be ‘costly’ for
employers at a time when many businesses are
already a ected by increasing costs.
It is unlawful to employ someone who does not
have the right to work in the UK. The consequences
of employing an illegal worker are significant and
can lead to a criminal conviction and/or a penalty
of up to £20,000 per illegal employee. When an
employer has carried out an adequate right to work
check, the employer has a statutory defence if that
worker is later found to be working illegally.
Prior to the pandemic, under Home O ice rules
the majority of right to work checks were required to
be conducted in-person. The prospective employee
showed their documents evidencing their right to
work and the employer took copies and kept them.
On 30 March 2020, temporary adjustments were
made to the requirement to conduct in-person right
to work checks to take account of the Government’s
Coronavirus restrictions. The adjustments allow
the checks to be carried out over video calls and for
job applicants to send a photo of their documents
to employers via email, rather than sending the
originals.
The Government has announced that the
temporary adjustments to right to work checks
will end on 30 September 2022. This date has been
pushed back on various occasions in response to
concerns by employers about having to return to
in-person checks. This may be di icult for some
employers given the increase in the number of
14 JUNE 2022
employees working on a more flexible basis.
The Government has recognised that many
employers will not wish to return to in-person
checks and has announced plans to implement the
option to carry out digital or online checks for all
employees.
Under the new rules:
From 6 April 2022, foreign nationals who have a
biometric residence card, biometric residence
permit or frontier worker permit can only be
checked online, not manually. They must provide
their date of birth and share code to allow
the employer to check their status using the
Government’s online checking service. This is a
free service and as a result, manual checks will no
longer be permitted. It will not be necessary for
employers to carry out a retrospective check for
employees where a manual check was completed
on or before 5 April 2022.
In place of adjusted right to work checks, from
1 October 2022, employers will be able to use
certified Identity Service Providers (IDSPs) to
complete digital right to work checks for British
and Irish citizens with valid passports. This will
be an alternative to manual checks and the IDSPs
will complete these digital ‘right to work’ checks
on behalf of employers for a fee. The digital
check will involve submitting images of personal
documents rather than the original documents
using Identity Document Validation Technology
instead.
Manual checks can continue to be carried out for
employees not covered by point 1 above. This will
mainly cover British and Irish nationals who do
not require permission to work in the UK.
Employers who have been conducting right to
work checks under the current temporary adjusted
measures, will need to consider their approach to
these checks in the future. If employers do not wish
to return to manual checks, they will also need to
factor in the costs of performing these checks in
their future budgets.
WHAT IMPACT WILL THE CHANGES HAVE
ON EMPLOYEES?
At present, it is common for prospective employees
to be asked to provide right to work documentation
during the early stages of the recruitment process. It
is likely that many employers will delay undertaking
checks until the later stages of the process, so
they do not incur unnecessary costs in relation
to candidates who will not ultimately be o ered
employment.
An approach which involves checking the right
to work at the latest stage possible is also advisable
from the perspective of avoiding claims for
discrimination. Conducting checks at an early
stage of the recruitment process may enable
prospective employees to argue that their
application has been rejected due to their race or
ethnicity.
The Government has issued a new Code of
Practice in relation to avoiding discrimination
when conducting right to work checks, which
all employers would be well advised to review.
The Code states the importance of treating all
candidates fairly and having clear procedures in
place for the recruitment and selection of workers
based on equal and fair treatment.
/taylorwalton.com
