Did you know that the rules around checking that employees have the right to work in the UK changed with effect from 1st October 2022? The previous rules which allowed employers to check documents remotely over video calls, emails etc were put in place during the COVID 19 pandemic where more people than ever were working from home. These rules came to an end at the end of September 2022. Under the new rules, business must check original documents to ensure employees have the right to work in the UK in a face-to-face setting. If the individual is a remote worker and in person checking of their documents is not possible, organisations must use either the services of a certified identification Service Provider (IDSP) for British and Irish citizens or the Home Office Online checking tool for foreign nationals.
These checks must take place before the person starts employment, ideally at interview stage or after interview but before the person commences employment.
Acceptable documents to demonstrate eligibility to work in the UK
A full list of acceptable documents to demonstrate an individual’s right to work in the UK can be found at Employers’ right to work checklist – GOV.UK (www.gov.uk)
Face-to-face checks
If conducting a face-to-face eligibility check, you must request original documents from the acceptable documents list above. You must then check the documents to ensure that they are genuine and that the person presenting them is genuine. Ensure that details such as dates of birth are consistent across all documents and photographs are consistent with the person’s appearance, assess any work restrictions and ensure that permission expiry dates have not passed. You must also ensure that the documents have not been tampered with and that reasons for any name change have been explained with evidence such as a marriage certificate, for example. Once you have satisfied yourself that the documents are correct and genuine, you will need to declare that you have checked the documents presented. Simply writing the date on them is not sufficient to demonstrate when the check took place. Employers will need to sign and declare when the checking took place. Original documents will need to be copied and held either electronically or in paper format and must be retained for the duration of the person’s employment and for two years afterwards.
Home office digital checks
Holders of biometric residence permits such as those with status under the EU Settlement Scheme or those with eVisas under the points-based system can use the online Home Office online checking service. Physical documents are no longer acceptable for these categories of staff, and they must instead request a share code which can be obtained online. An online check can then be carried out using the Home Office online right to work checking service. Employers will then need to check the photograph provided is consistent with the individual concerned and retain the output of the online right to work check for the duration of the person’s employment and for two years afterwards.
Using an Identity Service Provider (IDSP)
For British and Irish passport holders, employers can use Identity Validation Technology (IDVT) via the services of an IDSP. Under this system, prospective employees would submit images of their personal documents using IDVT. This digital process carries a fee with the service provider and employers remain responsible for ensuring the IDSP is carrying out its checks in line with government guidance. IDSP’s digital identity verification comes at varying levels of confidence and the Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a medium level of confidence.
Getting it wrong
There are significant penalties for employing staff who do not have the right to work in the UK and getting it wrong can render an employer liable to both civil and criminal penalties. The civil penalties applicable for employers who knowingly employ illegal workers can be a fine of up to £20,000 per illegal worker. It is also a criminal offence to employ workers illegally and employers could incur criminal penalties such as an unlimited fine and even a prison sentence of up to 5 years.
If your business needs help in this area, HR Overload can help you navigate the new rules around right to work checking for the different categories of workers your business employs. Please get in touch to see how we can help.