On 1st October 2022, the process for companies to check ‘right to work’ documents changed.
During Covid-19, allowances were made to the usual requirement for original documentation to be examined in person as this was often impossible. Companies were allowed to undertake remote checks. Things have now changed.
This article summarises the new rules for right to work checks. It also provides reminders as to the process for conducting right to work checks and the penalties you can face for employing individuals who do not have the right to work in the UK.
Time to read our post: 5 minutes
The questions answered in this post are:
- What Are the Changes to Right to Work Checks?
- Do I Need to Re-Check the Documentation for Those People Who Joined During COVID?
- How Do I Complete a Right to Work Check?
- What Happens if the Job Applicant or Existing Worker Cannot Show Their Documents?
- What Happens if I Employ Someone Who Does Not Have the Right to Work in the UK?
1. What Are the Changes to Right to Work Checks?
The updates that came into effect on 1 October 2022 were:
- The adjustments to right to work checks introduced on 30th March 2020 as part of the response to Covid-19 came to an end on 30th September 2022.
- From 1st October 2022, employers are required to carry out either
- a manual right to work check,
- a right to work check using Identity Documentation Validation Technology (“IDVT”) through the services of an approved identity service provider (IDSP), or
- a Home Officer online right to work check.
Employers will obtain a statutory excuse* and a defense against a civil penalty if they later discover they employed someone without the right to work in the UK by using one of these three methods.
* We think that the term is slightly misleading but be assured it is the correct term.
2. Do I Need to Re-Check the Documentation for Those People Who Joined During COVID?
You don’t need to re-check the documentation for people who joined from 30th March 2020 to 30th September 2022 (inclusive). This reflects the length of time the adjusted checks have been in place.
Employers will defend against a civil penalty if they conducted the check during this period in the prescribed standard manner or followed the Covid-19 adjusted checks guidance.
3. How Do I Complete a Right to Work Check?
There are two ways in which you can undertake a Right to Work check.
Online Right to Work Service
A company can use the government’s online right to work checking service when an employee has a right to work share code.
When using the online service for a right to work check, the data comes directly and instantly from Home Office systems, eliminating the need for employers to view or verify the individual’s documents.
Manual Right to Work Checks
If an employee isn’t eligible for the online right to work checking service or prefers not to use it, an employer must perform a manual right to work check.
The government guide ‘Right to Work Checks: An Employer’s Guide’ has a list of acceptable documents.
The same government document that contains the list of acceptable documents, also contains instructions as to how to undertake a manual check.
Nothing has changed here but it’s worth refreshing yourself on the process.
4. What Happens if the Job Applicant or Existing Worker Cannot Show Their Documents?
If the job applicant or existing worker cannot show their documents, employers must contact the ‘Home Office Employer Checking Service’.
If the person has a right to work, the Employer Checking Service will send you a ‘positive verification notice’. This provides you with a statutory excuse for 6 months from the date in the notice.
5. What Happens if I Employ Someone Who Does Not Have the Right to Work in the UK?
If officials discover you’re employing an illegal worker, they may send you a notice stating they are referring your case details to officials who will evaluate your liability for a civil penalty under section 15 of the Act and potential legal proceedings.
What happens after that will depend on the situation.
Situation 1: It is found that you had reasonable cause to believe you knew
In the first situation, you either knew or had ‘reasonable cause to believe’ that you were employing someone without the right to work in the UK. In this situation, authorities can send you to jail for 5 years and impose an unlimited fine on you.
This scenario includes if you had any reason to believe that:
- They did not have leave (permission) to enter or remain in the UK
- Their leave had expired
- They were not allowed to do certain types of work
- Their papers were incorrect or false.
Situation 2: It is found that you failed to undertake the correct checks
In the second situation, you discover that you employed someone without the right to work in the UK because you either didn’t perform the correct checks or didn’t do them properly.
If this happens, you might get a ‘referral notice’ to let you know your case is being considered and that you might have to pay a civil penalty (fine) of up to £20,000 for each illegal worker.
If authorities find you liable, they will send you a ‘civil penalty notice,’ and you’ll have 28 days to respond.
The notice will tell you how to pay, what to do next, and how to object to the decision.
Your business’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers. Read more about illegal working penalties on the GOV.uk website.
Want to know more about ‘Right to Work’ checks?
The Right to Work checks have changed recently and it’s important you are aware of the changes and the requirements in general.
Alternatively you can contact the home office directly