Right to work checks

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 affected 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 Office 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 difficult for some employers given the increase in the number of 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 offered 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.