During the Pandemic, the Government introduced a temporary adjustment to the way in which Employers could carry out Right to Work checks to check prospective employees’ eligibility to live and work in the UK. This adjustment allowed for Employers to carry out checks remotely, however this adjustment ceased from 30 September 2022.
From 1 October 2022, this adjustment came to an end and Employers are now required to carry out Right to Work Checks physically or via a digital identity service provider (IDSP) for remote checks. Additionally, a new way of conducting Right to Work Checks for EU, EEA and Swiss Nationals as well as those with Residence Permits was introduced and we have described below.
When do I need to carry out the Right to Work Check?
Employers are required to carry out the Right to Work Check before they employ a person.
Our recommendation would be that Employers conduct this check before offering an individual employment in order to avoid any issues arising in terms of having to withdraw an offer of employment which can be costly if the individual has already signed a contract of employment or started work.
Furthermore, in order to ensure you have the “statutory excuse” (an Employer’s defence against a civil penalty for employing an individual without the Right to Work), you must have followed the required Right to Work Checks as outlined by the Government before the person began employment.
How do I conduct the Right to Work Check?
For British/Irish Nationals, the Right to Work Checks can be completed either by:
- Conducting a “physical” check of the individual documents (such as a British Passport – a full list of accepted documents – List A – can be found here) – ensuring that they are original, have no obvious signs of tampering and belong to the individual in question. You are required to then take a signed and dated copy of the original document and retain this securely.
- Remotely using Online Identity Document Validation Technology (IDVT) through a digital identity service provider (IDSP). The Home Office has released a list of certified providers and recommends that Employers only engage with an IDSP that can satisfy a minimum of a “Medium Level of Confidence” however, have stated that this is not mandatory and Employers can use another provider if the Employer is satisfied that the IDSP can provide the required checks. The services provided by IDSPs are not free and may vary between providers. Employers are still required to satisfy themselves that the information provided to the IDSP is consistent with individual being checked and you are required to retain a copy of the IDVT identity check securely.
For EU, EEA and Swiss Nationals or individuals with a Biometric Residence Card and Permit, Right to Work Checks are completed by:
- Asking to see the original documents to check they are valid with the individual present;
- Asking the individual to provide you with a Share Code via the Home Office online check here and send it to you;
- Taking a copy of the Online Right to Work check output and storing it securely, ensuring any follow-up check is completed in due time (for example, where an individual’s Right to Work is time-limited).
You cannot employ individuals who do not hold a current Right to Work unless you are sponsoring them under the UK Visa Sponsorship Scheme which requires the Employer to hold a Sponsorship Licence and the position being eligible to meet the criteria for Visa Sponsorship.
Checking Right to Work for all employees is important and Employers need to be aware that sanctions can be costly for the business (civil penalties of up to £20,000.00 per worker for example) so should ensure they have an established process in place that can be evidenced under the “statutory excuse” requirements.
If you have any queries regarding the above Right to Work Checks or would like assistance in ensuring your business is compliant, please do not hesitate to contact us on 01358 788094 or info@involvehr.co.uk