Right to Work checks guidance October 2022
Right To Work – avoid a £20,000 fine!
The rules are changing – The adjustments to right to work checks introduced on 30th March 2020 because of coronavirus (COVID-19), end on 30th September 2022.
From 1st October 2022, employers can only carry out the prescribed checks in the following ways:
- A manual right to work check
- A right to work check using IDVT via the services of an IDSP
- A Home Office online right to work check
Never heard of an IDVT, an IDSP, or a Share Code?
In this article we untangle the mystery and tell you what you need to do to be compliant. As an employer you are responsible for completing Right to Work (RTW) checks, even if a third party did them for you, like an employment agency or outsourced HR provider.
You should conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you. If an individual’s right to work is time limited, you should conduct a follow-up check shortly before it is due to come to an end.
The responsibility is called ‘establishing a statutory excuse against liability for a penalty’ or simply ‘statutory excuse’. This means that if you complete the RTW checks using the methods set out by HMRC then you cannot incur a civil penalty if the employee turns out to be ‘illegal’ or does not have the right to work in the UK.
If no attempt is made to make any checks or you cannot prove that you tried to check RTW by the approved methods, you may be liable for a penalty of £20,000 per employee. If a court finds that you knew all along that an employee did not have the right to work (or stay) in the UK then you could face 5 years in prison and an unlimited fine.
We explain each of the three approved methods that apply from 1st October 2022 in detail below.
- A manual right to work check
There are 3 steps to conducting a manual document-based right work check:
- Obtain the original documents
- Check the documents are genuine
- Copy and securely retain a copy of each document
The in-person check was relaxed during COVID, and employers were temporarily allowed to check documents in on-line video meetings.
This is now a check that you must do in person and the new employee must bring you their original identification documents.
You must follow the guidance in Right to work checklist – GOV.UK (www.gov.uk). They explains what documents are acceptable (Annex A), what you need to check and record in a simple step by step process. When you are checking the validity of the documents, you should ensure that you do this in the presence of the holder.
If instead of a physical presence meeting with the new employee, you wish to check their RTW via a live video link, you must now be in physical possession of their original documents. Therefore, an individual may choose to send their documents to you by post to enable you to conduct the check with them via a live video link. You may not rely on the inspection of the document via a live video link or by checking a faxed or scanned copy of the document. We believe that it will be rare that prospective employees will want to send in their original document for fear of losing them and so this option will be rarely used. The employer will also be responsible for returning them safely to the prospective employee.
The employer is responsible for checking the document. Whilst it may be delegated to members of staff such as those responsible for the recruitment process (including agency workers engaged by you and working under your control), you will remain liable for the penalty in the event the individual is found to be working illegally and the prescribed check has not been correctly conducted. You may not delegate this responsibility to a third party where you are conducting a manual check of original documents.
If someone gives you a false document or a genuine document that does not belong to them, you should report the individual to the home office, or call the Employer Enquiry helpline on 0300 790 6268 (Monday to Thursday, 9am to 4:45pm; Friday 9am to 4:30pm).
- A right to work check using IDVT via the services of an IDSP.
An alternative new option for checking Right to Work for British and Irish citizens is via Identification Document Validation Technology (IDVT) using an approved Identity Service Provider (IDSP). There are now several ‘identity provider’ companies that provide these services, certified by UK Accreditation Service (UKAS). In the context of this guidance, an IDSP may be certified to provide identity verification to specific levels of confidence, specified by government standards, including Right To Work check, Identity checks, DBS checks, Know Your Customer (KYC) checks, Right to Rent checks and Right to Study checks.
There is a cost to this service, with most providers requiring a bulk purchase of credits to use. This can make using this type of RTW check unaffordable for small businesses who recruit new employees occasionally.
A list of certified providers is available on GOV.UK: Digital identity certification for right to work, right to rent and criminal record checks
You should satisfy yourself that the photograph and biographic details (for example, date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter). Copies must be taken of the check and kept for 2 years after the employee has left your business, if the check is time bound – then make sure you diarise to resubmit the IDVT before the expiry date.
- A Home Office online work check
This method is to be used for migrant worker applicants who have a Biometric Residence Permit (BRP) and therefore can apply for or have been given a Share Code. As an employer you need to ask for this nine-digit Share Code and follow the steps on the link: View a job applicant’s right to work details – GOV.UK (www.gov.uk)
You must save the results of the online Share Code enquiry and if the Right to Work or Right to Stay are time bound you must remember to make another Share Code enquiry near the date of the expiration of the permission to stay and work in the UK.
Retaining evidence
You must keep a record of every document you have checked, and record the date checked. This can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a jpeg or pdf document. You should keep the copies securely for the duration of the person’s employment and for a further two years after they stop working for you. You should also be able to produce these document copies quickly if you are requested to show them to demonstrate that you have performed a right to work check and retain a statutory excuse.
Clients using our Breathe HR software can store all Right to Work information under the ID Documents section of each employee’s HR record: The More Tab: ID Documents | Breathe Knowledgebase (intercom.help)
For employers, the introduction of digital identity checking into the Schemes will mean they can assure prospective employees’ identities, using consistent and more secure methods, reducing risk, and allowing them to recruit in a safer way.
Summary of Useful Links
Right to work checks: an employer’s guide – GOV.UK (www.gov.uk)
Right to work checklist – GOV.UK (www.gov.uk)
An employer’s guide to right to work checks: 6 April 2022 (accessible version) – GOV.UK (www.gov.uk)
Coronavirus (COVID-19): right to work checks – GOV.UK (www.gov.uk)
