Rules surrounding how employers check a prospective employees’ right to work change this weekend as Covid right to work checks come to an end in the UK.
From Saturday (1 October), employers will no longer be able to verify that someone is eligible to work in the UK by checking their passport over a video call. These “adjusted” right to work checks were introduced in March 2020 shortly after the first pandemic lockdown began.
Businesses will have three ways of performing a right to work check: a “manual” right to work check, face to face with the candidate; a digital right to work check using the services of an identity service provider (IDSP); or an online right to work check through the Home Office.
City law firm Bates Wells said the change came at the worst possible time for businesses, when many were struggling because of rising inflation and interest rates, as well as a plummeting pound.
Chetal Patel, partner in the firm’s immigration practice, said: “All employers in the UK have a duty to prevent illegal working. Right to work checks done by a recruitment agency or professional adviser aren’t sufficient.”
Right to work checks
“Employers should conduct right to work checks on new hires before employment commences – it’s not sufficient to leave checks until the first day. They must also carry out follow-up checks on employees on time-bound visas.”
Almost half of businesses are unprepared for changes to right to work checks coming in on 1 October, according to a recent survey by Xydus, one of the government-certified IDSPs.
Most businesses (96%) were aware of them, according to the research, but 78% were unaware they could face jail if found to be non-compliant.
Given the severe repercussions for businesses that do not comply with the right to work changes, it’s crucial that employers take the correct measures. Businesses face unlimited fines and prison sentences of up to five years if they flout the rules.
“Conducting right to work checks is free of charge, unless an employer uses the services of an accredited identity service provider to conduct checks on British and Irish citizens,” added Patel.
“Due to the financial cost involved in using an IDSP, SMEs may not use this method, unless in-person checks will be difficult. For those employers already using screening providers, it may be that there is no additional top up charge for the service.”
It’s a common misconception that driving licences issued by the DVLA can be used as evidence of a British citizen’s right to work – driving licences have never been accepted as right to work documentation as they don’t confirm the holder’s nationality.
Almost three quarters (72%) of businesses surveyed by Xydus thought driving licences were compliant for right to work checks, despite this never having been the case.
Employers engaging with an IDSP will find some that are certified and other that are not. Some uncertified IDSPs are partnering with certified IDSPs for right to work checks. The Home Office guidance says that while “not mandatory for employers to use a certified IDSP” for right to work checks, it “recommends” employers use a certified IDSP.
“However, regardless of whether or not the IDSP is certified, the responsibility for the check remains with the employer, and they must ensure the IDSP they select to complete the identity verification element of the check carries out a prescribed check prior to the commencement of employment.”
Patel said: “Where possible, our advice to employers remains to use a certified IDSP so that you can be assured that the ID verification service is being conducted in accordance with the UK Digital Identity and Attributes Trust Framework. It’s important that employers remember that the buck stops with them with regards to the right to work checks.”
Personnel Today has produced an overview of identity service providers, some certified and others not, that offer digital right to work checks.
Patel offered three top tips for employers to consider ahead of the right to work changes:
- Provide training to staff so they understand what needs to be done when hiring
- Update onboarding processes to reflect the new rules
- Create guides on how to conduct the right to work checks – have a protocol that everyone in the business adheres to.
She also emphasised that employers should carry out initial checks at the earliest opportunity. Right to work checks should not be left to the first day of employment. Can a new member of staff come in before the first day to meet the team? Can a check be conducted via an online method after the offer letter has been signed and before the first day?
Bates Wells added that employers should include right to work clauses in employment contracts, so that they can terminate the employment relationship in the event that someone doesn’t have the correct immigration permission to undertake the job in question.