HR and recruitment teams are used to conducting right to work checks prior to commencement of work. However, from 1 October 2022, the rules regarding right to work checks have changed – what are they and how can you protect your business?
Return to the old?
As most of you will know, employers must undertake certain immigration document checks on a candidate before their employment commences. Temporary changes were introduced over the last 2 and a half years to allow employers to carry out these checks virtually using video conferencing. However, from 1 October, employers must return to the previous method of physically reviewing List A and List B documents.
What are the right to work check requirements?
Employers are required to check the immigration documents of all new employees BEFORE they start work. This requirement is for all recruits and not nationality or race specific. In addition, employers also have to take reasonable steps to make sure all their employees maintain the right to work in the UK. Documents have to be checked physically, copied and retained for as long as the individual continue to work for the business.
If an employer has carried out proper right to work checks and an individual is found to have been employed illegally, it will be able to take advantage of the statutory defence.
What are the risks in not checking a recruit’s documents?
Substantial. Businesses face a fine of up to £20,000 per breach if the individual is found to be employed illegally and they cannot rely on the statutory defence. If there are a number of illegal employees, this could be a substantial fine. But this is not the whole story… potential criminal liability, director’s disqualification, risk losing a sponsorship licence as well as naming and shaming, could also result from a failure to undertake right to work checks.
Outsourcing Digital checking?
As well as a return to face to face document checks, employer have another option – outsource the process. Organisations have the option of working with an “Identification Document Validation Provider” or IDSP, using Identification Document Validation Technology (IDVT) on an organisation’s behalf. Digital checks can be done where the recruit has a UK or Irish passport. The RTW check is then carried out by the employer based on the IDSP’s report.
Home Office tool?
From 6 April 2022, employers could only complete checks for Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders using the Home Office’s online right to work service - View a job applicant's right to work details - GOV.UK (www.gov.uk) Here information about a recruit is provided directly from the Home Office’s systems so there is no need for employers to check or see someone’s documents.
Do employers need to carry out Retrospective face to face checks?
No. Where virtual checks were carried out, employers do not need to go back and re-check face to face. Only new checks from 1 October are impacted by the change. However, it is always good practice to review your internal processes and ensure that they meet the standards required.
What to do next?
Check your processes. Are your managers and HR teams up to speed with the new rules? If they are not, could they benefit from Right to Work training? We are working with a number of businesses and their HR and leadership teams on training them on the new rules.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.