Right-to-Work Checks: Key Steps.
Posted on 17th November 2023 at 13:39
This blog post, titled "Ensuring Compliance: A Guide to Right-to-Work Checks for Employers," emphasises the importance of conducting right-to-work checks for employers in the UK. It highlights the recent news of increased penalties for employing illegal workers and stresses the significance of understanding the current legislation. The post provides an introduction to right-to-work checks and why they matter, emphasising that these checks must be conducted on all prospective employees, regardless of their nationality. It outlines the various methods for checking documents, the responsibility of employers in conducting these checks, and the role of video calls in the process. The critical steps for compliance and the importance of record-keeping are also discussed.
Quick note before you read on! As an employer you must check every prospective employee’s right to work BEFORE you employ them to avoid hefty fines. It does not matter on your size, industry or whether you know the person, there must be a check and record kept on file for everyone.
Given the news in August 2023 when the Home Secretary Suella Braverman confirmed that the penalty for employers for employing illegal workers, will be raised to up to £45,000 per illegal worker for a first breach, and up to £60,000 for repeat breaches, we thought it would be a good idea to clarify what the current legislation is.
It is not yet clear when these proposals will come into effect but either way, get it wrong and you could face a fine of up to £20,000!
Introduction to Right to Work Checks
Hiring new employees is an exciting step for any organisation. However, before welcoming someone to your team, there are crucial steps you need to take to ensure you're in compliance with immigration laws. In this blog, we'll explore the importance of these checks and the procedures you should follow to establish a statutory excuse (to avoid being fined).
Why Right-to-Work Checks Matter
Before you hire someone, it's essential to verify that they have the legal right to work in your country. In the UK, this means conducting right-to-work checks. When done correctly before employment begins, these checks provide a continuous statutory excuse throughout the person's employment with your organisation. This excuse relieves you from conducting further checks on that individual. However, be cautious not to perform these checks too far in advance, as an individual's right-to-work status can change.
Checking All Prospective Colleagues
To avoid discrimination and errors, organisations must conduct right-to-work checks on all prospective employees, regardless of their nationality. This practice eliminates the risk of assuming someone's right to work based on their appearance or background.
Checking Documents
For British and Irish citizens, two types of checks are available: manual document-based checks and digital checks using Identity Document Verification Technology (IDVT) via the services of an Identity Service Provider (IDSP). This is the only method for conducting digital checks for British and Irish citizens.
For non-British and non-Irish citizens, organisations can perform manual document-based checks or online checks. It is now mandatory to use the Home Office's online checking service for individuals holding specific documents, such as Biometric Residence Cards (BRCs), Biometric Residence Permits (BRPs), or Frontier Worker Permits (FWPs).
Responsibility for Checking Documents
The responsibility for checking documents rests with the employer. You cannot delegate this task to a third party (e.g., a recruitment agency). However, you can seek technical knowledge or equipment from third parties. The exception to this is when using an IDSP for checking the right to work of a British or Irish national.
The Continued Use of Video Calls
From 1st October 2022, you can still use live video calls to confirm the visual appearance of the individual presenting for work. This applies to both manual and online checks. While Home Office guidance doesn't explicitly mention video calls, policy confirmation suggests that they suffice for verifying an individual's appearance.
Statutory Excuse - The Critical Steps to be Compliant.
To claim the statutory excuse, employers must follow specific steps when conducting right-to-work checks, whether through manual, online, or digital methods. These steps involve:
- Document verification.
- Copying.
- Dating when the check took place.
- Record-keeping.
Record Keeping
Employers must keep records of every document checked, in either hardcopy or a secure digital format. These records should be retained for the duration of the person's employment and an additional two years after their departure. The date of the check must also be documented and can be included on the copy or stored separately.
Failure to maintain these records could result in civil penalties.
In conclusion, conducting right-to-work checks is not just a legal obligation; it's crucial for ensuring your organisation complies with immigration laws and avoids potential penalties. By following the correct procedures and keeping accurate records, you can establish a statutory excuse and confidently welcome new employees to your team.
We can provide a simple guide and relevant information to help with ensuring you have the correct documentation in place.
Remember, check every prospective employee’s right to work BEFORE you employ them to avoid hefty fines. Contact your local HR consultant today to find out about accessing your HR Tool Kit.
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