There’s a lot of confusing information available on the latest changes to right to work checks, so here’s our shot at a straightforward explanation and answers to FAQs.
Employers must check that any prospective employee is allowed to work in the UK (whatever their nationality) before employing them, by carrying out right to work checks.
When the Covid-19 pandemic made it difficult for employers to conduct right-to-work checks in person, temporary adjustments to checks were introduced, in March 2020. These changes made it permissible to check scans or photographs of an individual’s ID documents rather than physical documents, meaning checks could be done during video calls.
In another adjustment, since April 2022, employers have been able to check British and Irish nationals’ rights to work using Identification Validation Technology (IDVT).
These adjustments came to an end on 30 September 2022 and going forward employers must now use one of three specific methods to conduct right to work checks. Here we explain these and answer some common questions.
How can I check a prospective employee’s right to work?
The three permitted methods are:
- An online right to work check via the Home Office.
- A manual check of the individual’s documents in person. These should be original identification documents. Employers must take copies of these and keep a record of the date of the check.
- A digital check using an identity service provider (IDSP) to digitally verify an individual’s identity using IDVT. Employers should make sure the provider sends them confirmation of the check and a copy of the document that was checked.
The appropriate method to use depends on the immigration status of the individual and the documents they hold.
- For holders of eVisas, Biometric Residence Permits, Biometric Residence Cards and Frontier Worker Permits, online right to work checks are mandatory. An employer must ask the prospective employee for their share code and date of birth and use this to check their right to work using the Home Office’s online checking service They should confirm the type of work permitted is appropriate and if there is a time limit on the right to do that work – if so, make sure to run another check before this expiry date.
- For individuals who do not fall within the scope of an online check (e.g. British and Irish passport holders), employers must either carry out a manual right to work check or use an IDSP. Either method is acceptable.
How long are right to work checks valid?
An individual’s right to work may be continuous (for example if they are a British citizen or have indefinite leave to remain). Where a person’s right to work in the UK is time-limited (if the employee has limited leave to remain) you should repeat a right to work status check ahead of the expiry date.
Who is responsible for making right to work checks?
The employer is responsible (whether or not they use an IDSP) and must keep a secure record of the check for the duration of the person’s employment, plus two further years.
What is the consequence of not checking an employee’s right to work?
Under the illegal working regime, failure to carry out a right to work check where required (either at all or in the right manner) could leave you liable to a civil penalty of up to £20,000 per illegal worker. Or, in extreme cases, an employer can face criminal prosecution.
A civil penalty will only be issued where the employee does not have the right to work and the employer cannot demonstrate that it has a valid statutory excuse against civil liability i.e. cannot provide evidence it carried out a check in accordance with the Home Office’s guidance.
A criminal offence occurs only where an employee does not have the right to work and their employer knows or has reasonable cause to believe the person does not have the right to work, and employs them anyway. That’s why fully understanding your obligations as an employer and getting proper advice where you’re unsure is vital.
If you need help with your process for right to work checks, or training to ensure your staff are up to speed and understand the new requirements, get in touch. Our team at The HR Consultants are happy to help.