The Home Office has released updated guidance on right to work checks, to reflect changes which are due to come into effect, from 6 April 2022.

Rights to work checks

From 6 April, employers will no longer be able to carry out manual right to work checks for employees/candidates who are biometric card holders.  Instead online right to work checks must be conducted on those types of documents, in order to secure a statutory excuse against illegal working.

During the pandemic, the Home Office relaxed the requirement for employers to see physical documents as part of manual right to work checks, permitting the checks to be conducted via a video call with the document holder in possession of their original document and the employer holding a scanned copy.

Following a series of extensions to the above concession (which seemed popular with employers), the Home Office indicated in late 2021, that this concession would continue until April 2022 only, at which point new digital processes (with means of secure checks) would be introduced. It therefore comes as little surprise that the Home Office has announced mandatory online checks from this date. However, at the same time, it has also announced a further, unexpected extension to the concession until 30 September 2022, allowing employers a further period to time to adjust to the new processes.

Online right to work checks have been possible for some time.  However these were only available in respect of a small number of documents and the ability to use the online portal, has been optional, with employers being able to conduct manual checks if preferred. This modification  therefore represents a significant change in approach, given that the discretionary approach to online checks will be removed and will be mandated for biometric card holders from April.

This change is part of wider Home Office policy to create digital borders to the UK.

Alongside the above change, the Home Office has also announced that employers will be able to use certified Identification Document Validation Technology (IDVT) to carry out right to work checks on future candidates from 6 April 2022 for British and Irish citizens. Currently (and as has always been the case), employers have been unable to obtain a statutory excuse, unless they have carried out the checks themselves on their employees. However the Home Office is now indicating that if certified IDVT providers are used to check the authenticity of the documents presented, this will allow the employer to gain a statutory excuse.  There is limited information about the use of IDVT providers and the process that will be put in place.  However it is clear that such providers must be certified and adhere to strict guidelines in their own right. The employer will continue to bear ultimate responsibility for the document checks.

Prevention of illegal working and unlawful discrimination

At the same time as announcing the above changes, the Home Office has also introduced a Code of Practice for employers on ‘avoiding unlawful discrimination while preventing illegal working’.

The code of practice outlines key areas where discrimination may arise during the course of recruitment and the conducting of right to work checks.

Managing right to work checks and the potential employment implications where such right is lost and/or evidence of such right cannot be produced, has long since been a delicate balance; the requirement for employees to maintain their right to work and produce evidence of this, to mitigate the risk of criminal and civil liabilities must be weighed against the employer’s obligation not to unlawfully discriminate on the grounds of race and or unfairly dismiss/take action against the employee.

As right to work issues are rarely straight forward, mismanagement of such circumstance can expose employers to risk of employment based litigation.

The new guidance is helpful in highlighting the risk areas which employers may come across and suggesting ways in which discrimination can be avoided.  This will hopefully result in less potentially discriminatory conduct and subsequent litigation.

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