There have been several changes to right to work checks in recent years. In this blog, ESP Solicitor’s immigration specialist solicitor, Charlotte Ashton, summarises the key updates for employers.
During the pandemic, the government introduced a temporary concession to right to work checks, allowing employers to carry out checks via video call and accept scanned or photographed documents which concluded in September 2022. With remote work on the rise, concerns persist on the post-concession era, prompting employers to explore effective strategies for compliance.
Employers have a responsibility to ensure that anyone taking employment with them has the right to work in the UK. This is proved by ensuring the correct checks are carried out on or before the first day of employment and records kept in accordance with government guidance.
Carrying out right to work checks
Employers can carry out right to work checks via either:
- A manual document check;
- A right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP); or
- A Home Office online right to work check.
Where a manual right to work check is required for British and Irish citizens, employers can use the services of an Identity Service Provider (IDSP) to carry out the check for them.
What are IDSPs?
IDSPs are Identity Service Providers who use Identification Document Validation Technology (IDVT) to carry out digital identity checks on individuals who hold British or Irish passports.
IDSPs can therefore provide the employer with the result of the right to work check which would replace the need for the employer to see the original documents.
Employers remain liable for any civil penalty resulting from someone working without the necessary permission. Employers must therefore ensure they are satisfied the IDSP is carrying out their checks in accordance with the necessary government guidance.
How should employers carry out right to work checks for other employees?
Where a prospective employee does not hold a British or Irish passport, employers must either:
- Continue to check original documents as set out in List A and B of the UK Guidance: Employers’ right to work checklist; or
- Carry out an online right to work check, either by using an employee’s share code or the Employers’ Checking Service.
How do online right to work checks work?
Where an employee holds a visa, status under the EU Settlement Scheme, or other immigration documentation, they may be able to obtain a share code which can be used to carry out an online right to work check.
Employers then use the share code to carry out an online check.
The Employers’ Checking Service is a separate online check and carried out on individuals who cannot show their documents or online status. If the employee does have the right to work, this check will provide employers with a Positive Verification Notice for a period of six months as proof of right to work. After that period, it is expected the employee would be able to show their status in another way or the employer could carry out the check again.
Understanding the risks
Employing workers who do not have the right to work in the UK can lead to an employer committing a number of different offences.
An employer will commit a civil offence if they employ a person aged 16 years or over who does not have the right to work in the UK in the role they are employed to carry out.
In addition, it is a criminal offence to employ someone:
- In the knowledge that they do not have the right to work in the UK; or
- Who you have reasonable cause to believe does not have the right to work in the UK.
The requirement to check the right to work applies to employers who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing. The Home Office also suggests that its right to work guidance should be followed when using workers who have a genuine self-employment status.
The criminal offence is currently punishable by way of imprisonment for up to five years and an unlimited fine.
The maximum civil penalty for employing illegal workers currently stands at £20,000 per illegal worker.
Mitigating risks with specialist support
At esphr, we can advise you on right to work checks and your legal obligations when employing migrant workers. Our specialist support can also advise you on the most suitable visa routes for your recruitment needs. We can help you through applying for a sponsor licence, creating and assigning Certificates of Sponsorship and advise on all aspects of the visa process.
