Nicola Smyrl, partner, Taylor Walton

Right-to-work checks are an intrinsic part of employment law, but the ways in which they are conducted are set to change permanently following a series of amendments made in response to the pandemic.

The announcement will not have been a major surprise to many employers who will have been feeling the benefits of the revised checking system. However, there remains some concern that the costs involved in implementing the revisions will simply heap more hardship on employers at a time when spiralling expenses are impacting business.

The current situation

Under UK law it is illegal to employ individuals who cannot prove they have the appropriate right-to-work documentation. Those who choose to recruit illegal workers face criminal conviction and/or incurring a fine of up to £20,000 per employee.

It is therefore crucial for employers to follow the necessary vetting processes. Being able to evidence that the correct steps have been taken to confirm eligibility will give an employer a statutory defence, even if an employee is later discovered to be working illegally.

Historically, Home Office rules have dictated that right-to-work checks were conducted face to face between a prospective employee and the recruiter. All documentation proving that an individual has the right to work would be presented to the employer in person, who would in turn make copies of the paperwork for their records.

Showing the correct steps have been taken will give an employer a defence, even if an employee is later found to be working illegally

In March 2020, with the announcement of social distancing measures to tackle the spread of the pandemic, the government introduced several temporary adjustments to remove the need for face-to-face interaction. The temporary system effectively allowed checking to be done over video call instead. Employees could provide photographic or scanned documents via email, rather than having to supply the originals.

These temporary amendments were slated to end on 30 September 2022 after numerous delays. Given the rise in popularity of home and flexible working, the issue for employers was that returning to in-person checks could prove challenging, so an alternative system would be needed.

The government therefore conducted a thorough review of the right-to-work procedures and is now implementing the option to digitally conduct the checks online.

The new regime

The modified structure for undertaking right-to-work checks states:

  • From 6 April 2022, the status of all foreign nationals who possess either a biometric residence card, biometric residence permit or frontier worker permit now needs to be checked online, rather than manually. All that is needed is a date of birth and a share code to verify someone’s eligibility via the government’s online checking service. This is a free service. Standard manual checks will no longer be permitted. Retrospective checks on any employee taken on or before 5 April 2022 will not be needed, as long as manual checking was conducted.
  • From 1 October 2022, employers will be asked to use certified Identity Service Providers (IDSPs) in order to complete digital right-to-work checks for any British or Irish citizen possessing a valid passport, as an alternative to undertaking the manual checks. The IDSPs will conduct the digital checks on behalf of employers for a set fee. In practice, employers will submit digital images of personal documents for processing using Identity Document Validation Technology, rather than simply copying original documentation.

Manual checks will still be required for any employee not covered under the first bullet above. This will generally cover any British and Irish national who does not require specific permission to work in the UK.

These amendments will leave employers with a choice: return to the manual process, which is more time-consuming and logistically challenging, or revert to digitally checking credentials, which will have cost implications for future recruitment budgets.

There is a new code of practice designed to minimise incidents of discrimination during the checking process

The impact on employees

Historically, it would have been more common for prospective employees to prove their right-to-work during the earlier stages of recruitment. But now it is more likely that employers will delay undertaking the checks until much later so that they won’t suffer any excessive expenditure on candidates who aren’t successful in their application.

The added benefit of processing checks at a later date is that it will help to prevent claims of discrimination. Undertaking right-to-work checks at the outset can be problematic, as it potentially allows rejected applicants to assert that they were not offered a role because of their race or country of origin.

The government has recognised this challenge and, therefore, as part of the right-to-work adjustments, it has also unveiled a new code of practice, which has been specifically designed to minimise incidents of discrimination during the checking process.

Employers are strongly advised to examine the guidance it offers in order to protect themselves, and this means ensuring strict protocols on equality are adhered to for worker selection.