Right to work checks for employers
Table of Contents
Overview of right to work checks
There have been some updates and minor modifications to the way right to work checks are handled in a short period of time, specifically that the government has chosen not to discontinue virtual right to work checks just yet and has confirmed some new rules that will take effect on July 1,2021.
What are right to work checks?
- Employers should conduct right-to-work checks to determine whether an individual from another country (including the EU) has the right to work in the UK and to avoid illegal employment. There are three steps they must perform in normal times. These are the following:
- obtain original right to work documents (such as a passport) from the individual
- check the validity and authenticity of the documents in the presence of the individual
- copy the documents and keep a secure, dated copy which includes the date for follow-up checks.
Alternatively, from 29 January 2019, employers can use the Home Office’s online right to work checking service to carry out immigration checks.
How much penalty employers could get if they employ an illegal worker?
There is a civil penalty in effect that allows an employer to be fined up to £20,000 per worker who does not have authority to perform the work for which they were hired. An immigration officer who believes the organisation is employing someone who does not have the proper work authorization might issue a notice imposing the fine under the civil penalty scheme.
What changed due to the pandemic?
The government amended the right to work check process in 2020 so that businesses didn’t have to meet with employees face to face. A scanned copy or photograph of documentation required to verify a right to work should be delivered to the organisation by email or mobile app under this interim approach.
The worker is then invited to participate in a video call and provide their original documents to the camera. These documents are then compared to the previously provided digital counterparts. The date of this check is recorded and noted as “adjusted check undertaken on [insert date] due to Covid-19”.
Employers were previously thought to be required to conduct a retroactive check using the standard approach indicated above once this temporary option was phased out; however, the Government has stated that this will no longer be the case.
What are the new rules on right to work checks from 1 July
Employers will no longer be able to accept passports and national identity cards from EU, EEA, or Swiss individuals as proof of employment eligibility from July 1, 2021. A manual document-based check and an online check are the two forms of right to work checks. From July 1, 2021, either approach can be utilised.
Employers shall not discriminate based on whether or not an individual is able and/or willing to use the online service to demonstrate their right to work. To do so may result in you breaching the law. While employers may choose to encourage use of the online checking system and may support individuals in doing so (eg by providing access to hardware and the internet), they are not permitted to mandate online checks (except where it is the only evidence the individual has because they are on a digital status only route).
If an individual does not wish to demonstrate their right to work using the online service, even if their immigration status or documentation is compatible with the service, employers should do the manual check.
List A and B, which outline the documents that employers may accept when checking right to work, have been issued. Employers should double-check the right to work of people who hold temporary work permits in the UK. This means that if the documents submitted by the employee for the initial pre-employment check were from List B, the employer must conduct a follow-up check. List A documents do not need a follow-up check.
Types of documents required for check employee’s immigration status
An example of acceptable documentation from List A is a passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
An example of acceptable documentation from List B is current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
What’s happening from 31 August 2021?
The temporary option of doing these inspections remotely will be phased out starting August 31st (formerly May 17th and June 21st), necessitating in-person checks in most cases. While video conferences will still be allowed, one major difference is that the organisation will need to receive the original versions of the important papers rather than copies, which may cause inconvenience for the employees in question.
Because the guideline on working from home is not changing, the change to this guidance first confused employers. Currently, it is expected that, at least in England, employees will be encouraged to work from home as much as possible until July 19, 2021.This reversion to the usual right to work checking process prior to this date therefore did seem to go against this as it would have resulted in more direct, in-person contact between employers and their employees.
What is Employers’ duty, when they hire someone?
Employers must now verify that their hiring and onboarding processes are in compliance with the new 1 July requirements, in addition to continuing to confirm that employees have the right to work in the UK. This is critical because non-compliance may result in penalties.
If employers are found to have hired someone illegally and have not carried out the prescribed checks, they may face sanctions including:
- a civil penalty of up to £20,000 per illegal worker
- in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
- closure of the business and a compliance order issued by the court; and more.
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