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The Home Office has faced backlash from employers and industry bodies for announcing an end to virtual right to work checks from 17 May. This is despite the rule still being that employers must allow employees to work from home where they can do so effectively, which isn’t set to change until 21 June at the earliest.
What does this mean in practice for employers?
What are my obligations?
Employers aren’t strictly, legally required to carry out right to work checks – if the Home Office conducted an audit and all of your employees had the right to work in the UK you would not be subject to any penalty if you had not carried out right to work checks.
However, employers are under an obligation to assist the government in preventing illegal working. Knowingly employing an illegal worker is a criminal offence to which there is no defence. However, a civil penalty applies even where you weren’t aware someone didn’t have the right to work (remember the doctrine – ignorance is no defence). You can avoid a civil penalty if you have carried out a compliant right to work check.
A word of warning to employers who are sponsor licence holders – you are held to a higher standard. Sponsors are expected to maintain robust systems for helping to prevent illegal working. There is therefore the risk of sanctions, even potentially losing your sponsor licence, for a failure to carry out compliant right to work checks in respect of all employees (regardless of what their actual right to work status happens to be).
What are the penalties?
For the criminal offence of knowingly employing an illegal worker, employers can face an unlimited fine and even a prison sentence of up to 5 years. Knowledge includes where you had “reasonable cause to believe” the person didn’t have the right to work in the UK, was not allowed to do certain types of work, their papers were incorrect or false or their permission had expired.
The civil offence is one of employing an illegal worker – knowledge is irrelevant – so you will fall foul of the law regardless of whether or not you knew the person didn’t have the right to work. The penalty can be up to £20,000 but will be reduced based on the adequacy of any checks carried out. If your checks were fully compliant with the Code of Practice/other guidance/rules in place at the relevant time then you will not be fined. Penalties will also be reduced where there is evidence of you reporting illegal workers, cooperating with Home Office enquiries and where you have not previously been found to employ illegal workers.
How are checks currently conducted?
From 30 March 2020 to 16 May 2021, employers benefitted from temporary adjustments to the process for right to work checks, introduced as a result of the pandemic. This allowed individuals to email their ID to employers and then the employer to check these via a video call where the person holds up the original. The copy document is annotated as: “adjusted check undertaken on [insert date] due to COVID-19”. The government has confirmed that employers will not be required to re do such checks, even once the rules are tightened.
What changes from 17 May 2021?
The government confirmed an end to the temporary measures, so from 17 May employers must revert to manual, or where applicable, online checks. Home Office guidance changes with frightening frequency, and employers will be well advised to always check online for the latest, most up to date guidance/code of practice/rules.
How do I conduct an online check?
Online checks can be conducted if the individual can provide you with a share code. The share code is relevant for EU nationals or their relatives who have EU settled or pre-settled status and other individuals who applied for a visa and used the ID checking app to scan their ID on their phone. The individual obtains their share code by entering the details they used for the purposes of applying for their permission in the first place, on the following government page: https://www.gov.uk/view-prove-immigration-status
Once the employee gives you their share code, you need to enter it, and their date of birth, on the following government page: https://www.gov.uk/view-right-to-work You will be able to save a copy of the result to the employee’s file.
Where an individual is unable to provide an acceptable document, for example because they have a pending application with the Home Office, employers should use the online Employer Checking Service. This is only relevant in limited circumstances, and you must have the individual’s permission.
How do I conduct a manual check?
From 17 May, unless you have a share code, you must conduct a manual check. Simply put, this involves 3 steps:
- Obtain - original, acceptable documents
- Check - (in the presence of the individual) the documents are genuine, reflect the individual giving them to you and permit the person to do the work in question
- Copy – the document clearly, make a note of the check on the copy, and keep it securely
The Home Office right to work checklist is an excellent tool for employers in conducting right to work checks – it explains what can be accepted as evidence, how to check the documents, how to copy them and whether a follow up check is required. Always look online for the latest version: https://www.gov.uk/government/publications/right-to-work-checklist
Do I have to conduct the check in person?
The Home Office has published a suite of statutory Codes of Practice for employers on preventing illegal working. This includes the following Code of Practice on Preventing Illegal Working which states, in section 4, that “The person must be present in person or via a live video link.”
We’d suggest keeping a close eye on this page and Code. Certainly currently checks by way of obtaining the original documents by post then checking these with the individual present over live video call would be compliant. This might present its own challenges – individuals may be unwilling to send such important documents by post, and who would be liable for a replacement if it went missing?
If you do decide to check the documents against the individual via video call, it would be wise to download and keep a copy of the Code of Practice in place at the time, so that it can be referred to in the event of an audit.
When do I conduct checks?
Right to work checks are only relevant for new employees, and any employees with a time limited right to work (i.e. where they have a document which does not fall into List A of the checklist). Checks must be conducted before the individual carries out any work in order to gain the full protection of the statutory excuse. For employees with a time limit on their right to work, a repeat check should be conducted in advance of their current permission expiring.
Employers don’t have to conduct (and can’t insist on conducting) retrospective checks for existing employees where they provided ID which fell into List A of the checklist. This includes any EU national employees. Many employers mistakenly believe they need to be checking the status of all of their existing employees, this is not the case and could even give rise to the risk of a claim.