Nicola elaborates on the fact that how employers perform ‘right to work’ checks is
set to change once again following a recent government announcement.
WHILE this may not come as a surprise to many following the interim alterations to the process bought about by the pandemic, there is some concern as some press reports have appeared to suggest that these new changes will have cost implications for employers at a time when increasing expenses are already damaging many businesses.
But the fact remains that it is illegal to employ a person who does not have the right to work in the UK, so checks are not negotiable. Opting to employ a worker illegally will have major consequences for any business owner, and can result in a criminal conviction plus a penalty fine of anywhere up to £20,000 per employee.
However, if an employer can prove that it has carried out the appropriate right to work checks during the recruitment process, then they’ll have a strong statutory defence irrespective of whether that worker is later discovered to be illegally working in the UK.
Before the pandemic hit, strict Home Office rules demanded that most right to work checks had to be conducted face-to-face. The employment candidate would present all necessary documentation that evidenced their right to work in person to the employer, who in turn would keep copies.
However, on 30 March 2020, and in the face of a nationwide lockdown, the Government introduced temporary adjustments to the process to take into account coronavirus restrictions. These adjustments made it possible for checks to be carried out remotely over video calls, with applicants then providing the employer a photo of their documents digitally, rather than simply handing over the originals for scanning.
These widespread adjustments to the process will cease to be the norm from 30 September 2022, with that deadline having already been pushed back numerous times in direct response to the employer’s concerns about having to return to facilitating checks in person. General consensus was that going back to the former protocol could be extremely challenging for many employers owing to the increase in flexible and home working.
As a consequence, government has now issued guidance on its intentions to introduce an option for carrying out digital or online checks wherever possible.
Under the new rules:
From 6 April 2022, those foreign nationals who have a biometric residence card, biometric residence permit, or a frontier worker permit can be checked via an online system. They will simply need to provide their date of birth and share code to enable an employer to validate their status via the Government’s online checking service. This is to be a free service, with manual checks no longer permitted.
It will not be necessary to carry out retrospective checks on employees if a manual check was already conducted on or before 5 April 2022.
From 1 October 2022, as an alternative to manual checks, employers can utilise certified Identity Service Providers (IDSPs) to complete digital right-to-work checks for all British and Irish citizens with valid passports. These digital checks will be carried out for a fee. The process will see digital images of personal documents submitted electronically and verified using Identity Document Validation Technology.
Manual checks can continue for any employee not covered by point one above. This will cover British and Irish nationals who don’t need permission to work in the UK. Full details of the amended regulations concerning right to work checks are available on the Gov.uk website.
Employers who have been performing right-to-work checks using the pandemic-enforced temporary adjusted process currently in use will now need to reconsider their approach. If they don’t wish to return to manual checks, they will have to consider the cost of performing the checks digitally.
What impact will the changes have on employees?
Currently, potential employees will be required to provide right-to-work documentation in the early stages of application. When the changes come in, it’s more likely employers will delay conducting the checks, so they won’t sustain unnecessary costs with candidates who aren’t ultimately offered employment.
Leaving the process until later on is also prudent for preventing claims of discrimination. Conducting checks earlier could allow a candidate to argue that their application was rejected due to their race country of origin, or ethnicity.
To coincide with the procedural changes, government has also issued a new Code of Practice which should assist in mitigating such discrimination claims during right to work checks. The Code itself affirms the importance of treating all candidates equally and proposes that clear procedures are implemented for the selection of workers based on fair treatment.
The skilled employment law team at Taylor Walton can assist employers with any queries relating to the new right to work checking process or any other employment or business immigration matters.
Nicola Smyrl is a partner in the Luton office of Taylor Walton specialising in discrimination law and business immigration