As all employers are no doubt aware, you must check that a job applicant is allowed to work for you before you employ them. This applies to all potential employees, regardless of nationality.
The Home Office provides specific guidelines for employers, setting out what documents are acceptable evidence and how checks should be carried out. Businesses that are found to have employed someone who doesn’t have the correct right to work can be liable for a civil penalty of up to £20,000 per illegal worker. However, provided the guidance is followed, employers are deemed to have established what is called the ‘statutory excuse’ to protect them against the civil penalty.
Back on 30th March 2020, in response to the pandemic, the Government brought in a temporary change to the guidance that is issued to employers for the checking of individual’s right to work documents.
Since then, employers have been able to conduct checks remotely - using a digital copy (such as a scan or a photo sent by email/text) and verify its validity by a video call, as opposed to the 'normal' process of having to physically see the original document. Other checking methods have remained relevant, depending on the potential employee's right to work status and available documents, such as the Home Office's online employer checking service.
Checks that have been carried out remotely during this time have been required to be marked as ‘adjusted check undertaken on (date) due to COVID-19’. But, as long as all the other usual guidance has been followed correctly, this has been sufficient to establish the statutory excuse. It has always remained an offence to knowingly employ someone who doesn’t have the right to work in the UK, with the risk of the civil penalty being applied.
The temporary measure was originally due to end on 16th May 2021, but it was announced a week earlier it would be extended until June - in line with the prevailing roadmap out of lockdown restrictions in England. It was eventually extended until 30th September 2022.
Despite the additional pressures placed on employers during the pandemic and the changes introduced, the Government has made it clear that no allowances will be made for failure to uphold the legislation in place for the prevention of illegal working so it’s critical that employers ensure they’re fully compliant by adhering to the legislation in place at the time.
It's therefore important for all employers to note that, from 1st October 2022, all employers will be required to follow the up-to-date guidance set out by the Home Office in their ‘Right to work checks: An Employer’s Guide’ before any employment commences.
It will come as a huge relief for employers that the Government has announced that they’ll be no requirement to complete retrospective checks on those who underwent the adjusted check during the time the temporary measures were in place (unless only a time-limited excuse was established, and a further check is due in any case).
The three prescribed ways employers can conduct a check from 1st October are as follows:
1. A manual right to work check
Where original documents are seen in person, checked to ensure validity and identity, and a copy – signed and dated original seen - retained on file.
This is the only acceptable way to check a British or Irish national who provides an expired passport, or a birth certificate together with proof of National Insurance number (as well as a number of other documents).
2. A right to work check using Identity Document Verification Technology (IDVT) via the services of an identity service provider (IDSP)
Where a third party IDSP provider – from the Home Office’s list of approved providers – conducts a check on the employer’s behalf. The employer will incur a fee for this service – which is set by the individual IDSP and will vary by contract. IDSP’s can only check current passports that belong to British and Irish nationals. Candidates with any other type of document, or an expired passport, cannot be checked via this route.
It’s also important to note that using a third party IDSP does not fully negate the responsibilities of the employer – the employer must ensure they keep copies of the document as well as the check carried out for the statutory excuse to be established.
However, it will be a route chosen by employers who want to continue being able to recruit remotely.
3. A Home Office online right to work check
Since April 2022, checking the right to work of Non-British or Non-Irish nationals has been simplified – employers can obtain a share code from the employee and use the Home Office’s online service to receive a digital right to work certificate. Physical documents issued to Non-British or Non-Irish nationals, such as Biometric Residence Permits (BRPs), or Biometric Residence Cards (BRCs), cannot be checked manually and can only be checked online using the Home Office’s digital service.
Alternatively, for potential employees without a share code – such as those with an outstanding application with the Home Office, for example, under the EU Settlement Scheme (EUSS) – it may be necessary to use the Home Office’s Employer Checking Service (ECS). The employer is required to enter details on the ECS webpage and await an email response which will either provide a Positive Verification Notice (PVN) or a Negative Verification Notice (NVN) – the latter meaning the candidate has no right to work and must not start working.
A PVN will provide you with a time limited excuse. Again, it is the responsibility of the employer to retain a copy of the notice and ensure the employee does not continue to work beyond the date set out in the PVN – unless a further right to work can be carried out within that time.
**Please note this blog is for informational purposes only and is not a substitute for taking your own legal advice**
**Information up to date at the time of publication**