Employment Law

New Right to Work Checking Rules- Is your Business Compliant?

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New Right to Work Checking Rules- Is your Business Compliant?
The new rules surrounding how employers check a prospective employees’ right to work have been in force for almost one month, but are you aware of what these are and are you conducting your checks in line with the new legal obligations?

With effect from 1 October 2022, employers lost the ability to 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. Originally introduced as a short-term measure, their implementation was extended throughout the various periods of lockdown which we had and although many of us are now used to conducting vast amounts of business interactions via video link, we are now going to have to un-used to the notion of conducting pre-employment checks in this way.

How should Right to Work Checks be carried out now?

Businesses now have only three ways of performing a right to work check:

  • a “manual” right to work check, face to face with the candidate with specific documentation being obtained, checked and store
  • a digital right to work check using the services of an identity service provider (IDSP)
  • or an online right to work checkthrough the Home Office

Employers who do not carry out checks in the right way and in line with the procedural requirements face significant fines and in the worst case, prosecution.

The responsibility for performing the check/ensuring it is carried out properly falls to the employer. All employers in the UK have a duty to prevent illegal working and right to work checks done by a recruitment agency or professional adviser are not sufficient either. It is also 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.

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 and adhere to strict retention periods in terms of documentation and information gathered.

What should businesses do?

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.

Employers need to ensure that they are fully au fait with the new rules regarding Right to Work checks and they should put systems in place to ensure that:

  • Staff are provided with training so they understand what needs to be done when hiring
  • Onboarding processes are updated to reflect the new rules
  • Appropriate policy documentation on how to conduct the right to work checks is implemented and that everyone in the business adheres to them

The government has published some lengthy guidance on the obligation to conduct Right to Work Checks which sits within the gov.uk website

How can Howarths help?

Howarths offers a full Business Immigration support service which covers the obligation to conduct Right to Work Checks. As well as being able to provide bespoke Business Immigration advice for your business in respect of the latest legislative change we have prepared a recorded one-hour training session for business and managers that talks through the Right to Work obligation and the three checking procedures. This session is available to purchase at £250 plus VAT and can be shared with your HR, recruiting and management teams.

We also have a full Immigration Compliance Pack which not only includes this recording but also policy documentation, management guidance, immigration compliant template recruitment documentation and immigration specific contractual clauses. This Pack is available for purchase at £750 plus VAT.

In the event that you would like to discuss any aspect of your Business Immigration requirements, the Right to Work Training session or the Compliance Pack please contact our Legal Director, Charlotte Geesin on 01274 864999.

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