When the Covid-19 pandemic triggered a sudden nationwide shift to home working, the government introduced temporary adjustments to allow employers to conduct compliant right to work checks remotely via video calls, rather than in person. These adjustments ended on 30 September 2022. This will have particular implications for carrying out right to work checks for British and Irish nationals as employers will either need to ensure they conduct the checks in person or use Identity Document Validation Technology by engaging an Identity Service Provider. In many cases, online checks for non-British/Irish nationals will still be possible using the Home Office portal.
The importance of right to work checks
Right to work checks are an important part of the onboarding process as employers may be issued with civil penalties of up to £20,000 for each illegally employed worker, even if they were unaware the person was working illegally.
To obtain a statutory defence against a civil penalty if an employee is later found to be working illegally, employers must ensure they carry out compliant right to work checks on all employees before the employee starts work. Additional follow up checks for employees with time limited leave must also be undertaken before the expiry of their leave.
Further, if the business holds a sponsor licence, conducting compliant right to work checks is also a sponsor duty. Right to work check processes are often particularly scrutinised during UK Visas & Immigration audits, and employers found to be in breach of their obligations under the guidance may have their licence revoked or suspended and lose their ability to sponsor foreign nationals.
It is also an offence to knowingly employ anyone who does not have the right to work in the UK.
It is therefore important that employers remain alert to any changes to the right to work guidance and update their right to work check processes accordingly. The current guidance governing right to work checks is set out here.
Covid-19 adjusted checks
On 30 March 2020, the Home Office introduced Covid-19 adjusted right to work checks. These adjustments were a temporary concession to allow employers to carry out checks remotely over video call, rather than in-person, using scanned or photographed documents, rather than originals. These arrangements ended on 30 September 2022. There is no requirement to conduct retrospective checks where Covid-19 adjusted right to work checks were undertaken before 1 October 2022.
From 1 October 2022
The processes for undertaking compliant right to work checks differs depending on an individual’s nationality and immigration permission.
British and Irish nationals
For British and Irish nationals, employers are required to conduct either:
- A manual right to work check or
- A right to work check using Identity Document Validation Technology (IDVT) by engaging an Identity Service Provider (IDSP).
It’s worth noting that a manual right to work must be undertaken (and is the only option) for British or Irish nationals who do not hold a valid passport.
A manual check entails seeing an applicant’s original documents (see here for a list of valid documents) and checking their validity with the applicant present, either in person or via a live video link. Importantly, the employer must be in physical possession of the original documents, so if the employer wishes to complete a manual check remotely the individual will need to physically send their documents (e.g. by post or courier) to the employer in advance. Employers must record the date of the check and then make copies of the employee’s documents and retain the copies for the duration of the employee’s employment plus two years afterwards.
In many cases employees are likely to be unwilling to post or courier their passport or other identity documents to their employer and, in such cases, the employer will need to meet with the employee in person before they start work to undertake the manual right to work check.
Introduced on 6 April 2022, employers may alternatively use an IDSP to complete the digital identity verification element of the right to work check for British and Irish nationals who have a valid passport. A list of certified IDSPs can be found here. This is a chargeable service.
While an IDSP will check the authenticity of an individual’s uploaded passport scan or photograph, employers nevertheless remain responsible for ensuring that they “reasonably believe” that the IDSP check has been carried out correctly and that the photograph and biographic details on the IDVT check match the individual. It was initially envisioned that IDSPs would provide a remote alternative to manual in person checks. Unfortunately, a lack of Home Office confirmation on whether this verification can be satisfied through a live video call means it is unclear whether a video call is sufficient and some IDSPs are advising employers that they must still physically meet an individual prior to employment (at an in-person interview, for example) to establish a statutory defence. Until the position is clarified by the Home Office the safest approach is to meet the individual in person before their employment commences.
Employers using IDSPs must retain a clear copy of the IDVT identity check output for the duration of employment plus two years.
Non-British and non-Irish nationals
Following the changes introduced on 6 April 2022, right to work checks where individuals have settled or pre-settled status under the EU settlement scheme, hold a Biometric Residence Permit (BRP), a Biometric Residence Card (BRC), or a Frontier Worker Permit or have an eVisa must now be undertaken using the Home Office online right to work check service. Employers will no longer establish a statutory defence against a civil penalty if they rely on seeing and copying the physical documents.
The online right to work check service is free to use and provides employers with a defence against civil penalty. This check can be carried out via a live video link as right to work information is provided in real time direct from the Home Office and does not require checking physical documents.
To carry out an online right to work check, employers will need:
- The applicant’s date of birth
- The applicant’s nine digit share code, generated by the individual when accessing the "prove your right to work" portal.
Employers will then need to visit the online checking service and, in the physical or virtual presence of the individual, satisfy themselves that any photograph on the online right to work check matches the individual presenting themselves for work. A clear copy of the response provided by the online right to work check must also be retained and securely stored.
If a non-British or non-Irish national does not have settled or pre-settled status under the EU settlement scheme, hold a BRP, a BRC, or a Frontier Worker Permit or have an eVisa, then the employer must undertake a manual check (as set out above).
Action required by employers
The end of Covid-19 adjusted checks poses particular challenges to employers operating with a fully remote hiring process and workforce. From 1 October 2022 onwards, employers will need to update their recruitment and onboarding processes to ensure they are complying with the new guidance. Employers should also ensure that employment contracts and offer letters are updated to require employees to provide the necessary information for their employer to conduct the online checks and, if applicable, to enable the IDSP to conduct the check. Managers will need to be trained regarding these new rules. Finally internal policies and employee privacy notices will also need to be updated, especially if the employer is engaging an IDSP as personal data (including special category data) will need to be sent to the IDSP.
Kerry Garcia