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, the concession (which seemed popular with employers) finally came to an end on 30 September 2022.
From 1 October 2022, employers can only conduct a right to work check by completing:
- An online right to work check for biometric card holders;
- A manual right to work check (where this is permitted for non biometric card holders); or
- Via Identification Document Validation Technology (IDVT) (introduced earlier this year) for British and Irish citizens.
Rights to work checks
Employers must carry out right to work checks (in compliance with Home Office guidance) in order to establish a statutory excuse, in the event a worker or employee transpires to be working illegally. If a right to work check is not completed (correctly or at all) and illegal working is uncovered, the employer could be liable for a fine of up to £20,000 as well as having their details published on a public list, issued by the Home Office.
Many employers will have become used to the convenience of carrying out remote right to work checks. They may be unaware that by continuing this practice after 30 September 2022, they will not be completing an adequate right to work check and in the event of illegal working, there will be no statutory excuse in place, resulting in a fine and reputational risk as noted above.
Further, given the Home Office guidance published earlier this year, employers must also be familiar with the mandatory online right to work checking process where this is required (for biometric card holders). Again performing the incorrect check, will not allow the employer the benefit of a statutory excuse.
Employers should ensure that those responsible for conducting right to work checks are familiar with these changes and that there are robust systems in place for checking the right to work of all candidates and employees before employment commences and/or at expiry of leave. This is particularly the case for sponsor licence applicants and/or holders, where the Home Office expects absolute compliance with right to work requirements as part of the application assessment process and/or ongoing compliance checks.