Right to Work Checks: New Guidance for Employers

UK employers have a legal obligation to comply with the prevention of illegal working legislation. This requires employers to conduct basic documentation checks on every UK-based employee to verify that any individual employed has the requisite permission to perform the work on offer. Failure to carry out the correct checks in the prescribed manner could incur a civil penalty of up to £20,000 per illegal worker.

Importantly, as part of your recruitment and onboarding process, the checks must be carried out indiscriminately on all prospective employees, regardless of nationality, race or ethnicity. Singling out certain classes of individual could lead to complaints of unlawful discrimination. All checks must be carried out before the person starts work.

Right to work checks apply to ALL employees including British Nationals, paid and unpaid, including voluntary workers and those over the age of 16.

In this Right to Work guidance, we explain about the new Home Office online checking system and how to conduct employer Right to Work checks as well as the Right to Work documents that should be provided by your employees.

New Right to Work check Rules

During the Covid-19 pandemic and the Government’s strategy to encourage home working, adjusted remote checks were introduced for British/Irish Nationals which allowed the employee to send copies of their ID documents by email and for the employer to carry out the check via video link – because it was not always possible to carry out Right to Work checks face to face. This method is being phased out and can no longer be used after 30 September 2022.

There are now three ways in which to conduct employer Right to Work checks:

1. Home Office online check which is used for migrant workers only
2. Manual check for British/Irish Nationals
3. New IDVT (Identity Document Validation Technology) check via IDSPs (ID Service Provider) which is launching from 1 October 2022 and is intended for British/Irish Nationals

Below we identify the requirements for each of these three ways.

1 Home Office online check for migrant workers

• The worker will generate a ‘check code’ via the Home Office Right to Work website and give this to the employer
• The employer will complete the online Right to Work check by entering the individual’s details on the ‘checker’ section of the Home Office Right to Work website
• The employer must then conduct either a face-to-face check or a check via video link to verify that the photo matches the individual and that the visa is valid for the type of work being offered
• In order to constitute a valid Right to Work check, the employer must keep a copy on file of the worker’s immigration status document, with photograph, which shows that they have the correct leave and that they can do the work in question
• The employer must ‘certify’ the document to confirm that they have seen the original document by adding their signature and print their name, as well as the date and time that the check took place
• These on-line checks are now mandatory for this group

2 Manual check for British/Irish Nationals

• This method is for British/Irish Nationals or people who have the right to live and work in the UK indefinitely and who have a physical visa/stamp in their passport* (*Annual checks should be carried out to ensure there has been no change to visa conditions that might affect the visa status, eg marriage breakdown if on a spousal visa)
• The original documents must be used for the check and the worker must send their original documents by secure delivery if it is not possible for the employer to carry out a face-to-face check
• Clear, colour copies should be made of all documents which must be ‘certified’ by the checker to confirm that they have seen the original documents by adding their signature and printing their name, as well as the date and time that the check took place. Each document submitted should be certified in this way
• Checks can be carried out via video link provided the checker is in possession of the original documents

3 New IDVT via IDSP for British/Irish Nationals

• This method comes into effect from 1 October 2022
• It is to be used for British/Irish Nationals only
• Only valid (in date) passports can be used
• This is an outsourced method to a third party who will carry out checks on behalf of the employer
• IDSPs charge a fee – anything from £20 to £100 – there is no set fee, so employers should shop around
• It will still be necessary for the employer to conduct either a face-to-face check or a check via video link to verify that photographs match the individual and then ‘certify’ the document by adding their signature and print their name, as well as the date and time that the check took place

Right to Work Checklist

When carrying out a manual Right to Work check, the employer must obtain original documents from either List A or B of acceptable documents. [GOV.UK: Employer’s right to work checklist 06/04/2022]

The Checking Process

The majority of candidates will be available for a face-to-face check at interview stage, therefore options (1) and (2) will be used, with option (2) being the most common:

• Embrace HR will ascertain at telephone interview stage that the candidate has the correct Right to Work documentation
• Embrace HR will advise candidates to take their original documents which show their Right to Work in the UK with them on their first face to face meeting with the parents and/or case manager
• Parents/case manager must ask to see a copy of the candidate’s Right to Work documentation at the first face-to-face meeting
• Documentation should be checked, and a clear colour copy of all documents should be made and certified by the checker to confirm that they have seen the original documents, by adding their signature and printing their name, as well as the date and time that the check took place. Each document submitted should be certified in this way
• Copies of these certified documents should be sent by email to Embrace HR
• In the case of migrant workers, Embrace HR will advise the candidate to generate a ‘check code’ via the Home Office Right to Work website and to give this to the parents/case manager on their first face-to-face meeting
• Parents/case manager will follow the steps as described under option (1) above to carry out the Right to Work check and send certified copies by email to Embrace HR

If you would like to discuss this subject further, please contact Cecily Lalloo at Embrace HR Limited.

T: 01296 761288 or contact us here.

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Based in Aylesbury, Buckinghamshire, Embrace HR Limited provide a specialised HR service to the care sector, from recruitment through to exit.