Right to Work Checks- Do you know your obligations?
Welcome to the first part of our email mini-series on Right to Work Checks!
During the course of this article, I will explain the fundamental principles of the requirement to carry our Right to Work Checks and outline some of your key obligations as a UK employer.
It has long been the case that employers have had obligations to prevent illegal working. All employers irrespective of size and administrative resource, are subject to a legal requirement to check that all of its employees (including those of British origin) have a right to work in the UK. Employers who fail in their obligations relating to the prevention of illegal working can face civil and criminal proceedings which include significant fines of up to £20,000 and in the worst cases, imprisonment. A business’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers. Not particularly great things to be facing as an SME business!
Earlier this year, a new draft Code of Practice on the prevention of illegal working for employers was published, along with updated guidance on the prevention of illegal working. These documents are well worth a read for any employer and they explain how the Government will now administer the civil penalty scheme in respect of right-to-work checks and the ways in which right to work checks must be conducted from this date. The documents incorporate the most significant changes to the right-to-work checking system since 2008 and management and HR teams need to familiarise themselves with the new ways of working.
Top-Tip! The Code and Guidance are not overly long but once read, they probably will slip from your mind. Why not print a copy of the documents and place them in your office or with your personnel and recruitment files for easy future access?
Carrying out to Right to Work Checks
The requirement to carry out right to work checks is absolute and there is no means of minimising or short-cutting the process. The right to work provisions are set out in legislation and the Code sets out employers’ duties in three key steps referred to as: OBTAIN, CHECK and RETAIN. The process must be completed prior to employment starting and HR teams should ensure that the immigration principles are embedded into their recruitment and onboarding systems.
An employer needs to obtain original copies of those documents which are confirmed as being acceptable with the aforementioned Code of Practice. The Code includes two lists of accepted documents: List A and List B. Broadly speaking List A is for individuals with settlement rights and List B is when entry is subject to some time constraints.
The documentation must be checked in the presence of the applicant and a reasonable test of authenticity should be carried out. The Home Office does not expect employers to be fraud experts but they do expect employers to follow up any concerns which they may have about the authenticity of documentation accordingly. Once checked, the document should then be signed, dated and certified as being a true likeness of the applicant. The employer should then keep the documentation on file for the duration of employment and for two years thereafter.
Top-Tip! Employers must not discriminate when conducting right to work checks and they should conduct right to work checks on all potential employees, including British citizens. Make sure that your HR teams and managers with responsibility for recruitment are aware that all potential staff members are subject to these checks.
Right to Work Checks for Agency Workers
When it comes to agency workers, if the worker remains employed by the agency throughout their contract, it is the agency’s legal responsibility to make relevant checks on their right to work status – it is not for the employer to do this. Employing agencies must ensure that all the pre-employment screening is satisfactorily completed and that workers are legally entitled to work in the UK.
That said, where a business is using temporary workers supplied by an agency it should not take it for granted that the agency has carried out the prescribed document checks. It is good practice to seek a written undertaking/warranty from the agency that it has carried out the prescribed document checks correctly and in line with the Home Office’s guidance. If this assurance is not forthcoming, it should set alarm bells ringing.
If, however, you use an employment agency to recruit an employee who will be employed directly by you, the responsibility for carrying out the right to work check rests with you. You cannot delegate the check to the agency and you may be liable for a penalty if you do this.
Adjusted Right to Work checks- Covid-19
The ‘official’ right to work process involves face to face contact but during the Covid-19 pandemic temporary adjustments were made to the process to allow for remote checking. The current expiration date for these extensions is 5 April 2022.
The extension means that employers can continue to carry out remote right to work checks and that:
- checks can be carried out over video calls
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
Employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Carrying out Remote Checks
If you are carrying out a temporary adjusted check, you must:
- ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
- arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
- if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.
Online right to work service
The Home Office right to work online service provides an alternative to the normal Three Step process and gives an employer a defence against a civil penalty. You don’t need to see or check the individual’s documents, as right to work information is provided in real time directly from Home Office systems but the service does require the applicant’s consent. Employers cannot insist individuals use this service or discriminate against those who choose to use their documents to prove their right to work.
Applicants who do consent will provide you with a share code that you will be able to use to access their real time immigration status. The result should be printed, signed and stored by you for the duration of employment plus 2 years in the usual way.
Top-tip! If you have any doubts or concerns about the results of an online check, carry out a document based check too and vice versa! Too much checking will always be better than not enough checking!
You do not need to carry out retrospective checks on those who had a Covid-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). This reflects the length of time the adjusted checks have been in place and supports business during this difficult time
You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the Covid-19 adjusted checks guidance. It remains an offence to work illegally in the UK. Any individual identified who is disqualified from working by reason of their immigration status, may be liable to enforcement action.
If the job applicant or existing worker cannot show their documents
You must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’. This provides you with a statutory excuse for 6 months from the date in the notice.
How can we help?
Howarths brings together expertise in UK immigration law, employment and HR and we are working with the SME market to ensure that they are compliant with these fundamental employment checks. We offer a full Right to Work consultancy service to provide guidance to help you to meet your legal duties. Our service includes (amongst other things!) being able to review your existing Right to Work checking and monitoring policies and processes and advise on areas of risk- providing recommendations on areas of improvement. We offer an audit service to ensure that your personnel records are up to date and can provide Right to Work training for your HR teams, line managers and supervisors.
If you would like to learn more about your legal obligations in respect of right to work checking and immigration compliant recruitment and onboarding then please do not hesitate to contact us on 01274 864999. I can contacted direct at email@example.com and training enquiries can be directed to firstname.lastname@example.org
Keep your eye out for the next instalment in this series where I will take a deeper look at your obligations when it comes to EU workers!
Author: Charlotte Geesin, Legal Director at Howarths