Amendments to the ways employers can perform ‘right to work’ checks were recently announced by the government. Concerningly, various press reports seemed to suggest the changes would have cost implications for employers at a time when many businesses are already affected by increasing expenses.
It remains illegal to employ anyone who does not have the right to work in the UK. Employing an illegal worker has significant consequences and can result in criminal conviction and/or a penalty of up to £20,000 per employee. However, if they have carried out adequate right to work checks, the employer will have a statutory defence even if that worker is later discovered to be illegally working.
Before the pandemic, UK Home Office rules dictated that the majority of right to work checks should be conducted in-person. A prospective employee would present documentation evidencing their right to work and the employer kept copies of the paperwork.
However, on March 30, 2020, temporary adjustments were made to this process to take account of the government’s coronavirus restrictions. The adjustments allowed checks to be carried out over video calls, with job applicants then sending the employer a photo of their documents via email, rather than handing over the originals.
These temporary adjustments will end on September 30, having been pushed back on various occasions in response to employer’s concerns about having to return to undertaking in-person checks. This could be challenging for some employers given the increase in flexible or remote working.
As a result, the government has outlined its intentions to implement the option to carry out digital or online checks instead.
The new rules dictate:
- From April 6, foreign nationals who hold either a biometric residence card, biometric residence permit or frontier worker permit will be checked online, not manually. They will need to provide their date of birth and share code to enable an employer to verify their status via the government’s online checking service. This will be a free service and manual checks will no longer be permitted. It will not be necessary for employers to carry out a retrospective check for employees if a manual check was undertaken on or before April 5, 2022.
- From October 1, 2022, employers can use certified identity service providers (IDSPs) to complete digital right to work checks for all British and Irish citizens holding valid passports, as an alternative to manual checks. The IDSPs will carry out these digital checks on behalf of employers for a fee. The process will involve submitting digital images of personal documents rather than original documentation using identity document validation technology.
- Manual checks will continue to be required for any employee not covered by point one above. This will generally cover British and Irish nationals who do not need permission to work in the UK.
Full details of the revised regulations regarding right to work checks have been made available on the gov.uk website.
Any employer who has been conducting right to work checks utilising the temporary adjusted process currently in place, will need to rethink their approach for carrying out these checks in the future. If employers do not wish to return to standard manual checks, they will need to also consider the cost of performing digital checks in their future budgets.
What impact will the changes have on employees?
Currently, prospective employees will be asked to provide right to work documentation in the initial stages of recruitment. When the changes come into force, it is likely employers will delay conducting the checks until later in the process, so they will not incur unnecessary costs from candidates who are not ultimately offered employment.
Leaving the process until later in the day is also advisable for avoiding claims for discrimination. Undertaking checks at an early stage of recruitment could allow a prospective employee to argue their application was rejected due to their race, ethnicity or country of origin.
So, to coincide with this, the government has issued a new code of practice, which should help to avoid discrimination when conducting right to work checks, and all employers would be well advised to review the advice it contains. The code asserts the importance of treating all candidates fairly and suggests that clear procedures are implemented for the selection of workers based on equal and fair treatment.
The skilled Employment Law team at Taylor Walton can support employers with any enquiries relating to the new right to work checks or any other employment or business immigration matters.
- Nicola Smyrl is a partner in the Luton Office of Taylor Walton and advises employers and employees on a wide range of employment related issues, specialising in discrimination law and business immigration.