The Home Office was quick to act and permit employers to undertake right to work checks remotely when the epidemic first struck in March 2020. They were able to communicate with job candidates and employees who needed to renew their status via a video call rather than in person. This flexible approach of conducting checks has finally stopped on September 30, following multiple extensions. Employers must undertake a check starting on October 1 in one of the following ways:
- Via an identification check utilising Identification Document Validation Technology (“IDVT”)
- An in-person manual check using original documents
- Via the Home Office’s online checking service
Why Should Businesses Examine Employees’ Right to Work?
First and foremost, it’s crucial to always keep in mind the need of having thorough right to work inspections. If the Home Office determines that an employer has hired someone who is not authorised to work in the UK, the employer may be subject to fines of up to £20,000. The employer may also be subject to criminal penalties if they knew or should have known that the employee did not have the proper authorization to work.
Employers get a statutory justification by undertaking a right to work check that completely complies with the Home Office’s standards, which are listed here. In essence, this is an insurance policy that will allow the employer to defend themselves if it turns out the person generated, for instance, a highly convincing phoney document during the right to work checking procedure.
Right to work investigations are completely free unless an employer chooses to use the new IDVT procedure (more on that below). Therefore, it is advised that firms perform fresh checks on all prospective employees before the employment begins and updated checks on current workers who have restricted permission to remain in the UK. For the term of the employee’s employment and for two years following, secure records proving that legitimate right to work checks have been conducted are required.
How To Carry Out a Manual Inspection
Unless they are required to undertake an online check, most companies will likely conduct manual right to work checks (see below). The Home Office’s guidelines provide detailed instructions on how to carry out manual checks. The fundamental method is:
- Meet the person in person
- Examine the original documentation proving their employment eligibility
- Preserve a copy
Lists A and B of the guidelines list the documents that an employer may accept to acquire a statutory excuse. Documents may include a passport, a certificate of naturalisation or registration as a British citizen, depending on the circumstances of the individual.
When Is It Necessary to Conduct An Online Check?
Employers must do an online check starting on April 6, 2022, to determine whether a candidate has a Biometric Residence Card (BRC), Biometric Residence Permit (BRP), or Frontier Worker Permit (FWP).
Employers need to ask their staff for a share code, which they can then use to generate an online right-to-work check. Employers should verify the information provided, including the photo, on the profile page that was generated. then store a copy so you have proof that the check was finished.
There is no lawful justification for checking these documents in person or online from April 6.
The Employer’s Checking Service: When Should I Use It?
Employers are required to use the Employer Checking Service (“ECS”) of the Home Office to validate a statutory justification in several situations.
When an employer receives a letter confirming the receipt of an application to the EU Settlement Scheme, they may use the service. The record can be a paper Certificate of Application, an email or letter of acknowledgement. Regardless of the applicable deadlines for the EU Settlement Scheme, it may apply to a request that was submitted at any time. The service should also be used when someone has completed an online check of a digital Certificate of Application but is then forwarded to the Employer Checking Service. This might be the case for some EU Settlement Scheme applications submitted on or after July 1, 2021.
When an employer presents an applicant with a valid Application Registration Card and the card indicates that the applicant is authorised to perform the required work, the service should be utilised by the applicant.
An employer might not always feel that they have been given appropriate documentation for a right to work check. The Employer Checking Service should be used in two situations where a person can still demonstrate their status. First, if the applicant’s Home Office application is still pending. Before their prior authorisation to enter or remain in the UK expired, the uncompleted application should be submitted. Additionally, there can be a pending administrative review or appeal for the person. They just won’t be able to demonstrate their right to work in the usual methods under these conditions. Second, if the person can provide additional proof that they have lived in the UK for a long time and entered the nation before to 1988.
IDVT Checks: Identification Document Validation Technology
Legislation allowing accredited Identity Service Providers (“IDSPs”) to complete the identity verification portions of right to work checks involving British and Irish residents was introduced on April 6, 2022.
In other words, companies can pay a privately run, Home Office approved company to carry out such checks remotely. Here, specific information is provided in the Home Office advice.
It is anticipated that the ordinary small or medium-sized employer won’t execute checks in this fashion because it is costly, unless all their employees work remotely, and in-person checks are challenging to complete.
Act Right Away
Employers frequently struggle to put in place a system that will ensure that all right to work checks are completed on time and in accordance with the Home Office’s standards. According to People Management, a recent survey by Xydus, an identity service provider, revealed that 48% of firms are unprepared for changes that will take effect on October 1, 2022. Many people won’t be aware that video calls for background checks no longer qualify as a legal defence.
It is undoubtedly time for individuals in charge of this crucial task to stay current with the developments.
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Written by:
Tahir Shahab Khan
Managing Director