UK employers are required to conduct Right to Work checks on prospective employees. These checks ensure that every worker is legally permitted to work here.
Prior to April 2022, employers could perform right-to-work checks in one of three ways:
However, manual and online checks have changed since 6 April 2022. Maintaining compliance is made easier if you remain aware of the changes.
Before an employee can start working, an employer must check the applicant's right to work online by using a shared code provided by the prospective employee and Physical cards are no longer accepted. Manual checks are only available for British and Irish citizens.
In April 2022, a new online system for checking the right to work was introduced for British and Irish citizens with valid passports (including Irish passport cards). A share code is not required to use this system. British and Irish passport holders can instead utilize certified IDVT service providers to conduct digital identity checks on their behalf.
It must be noted, however, that online checks are not free.
As a temporary measure in response to the pandemic and lockdown restrictions, the Home Office introduced the COVID-adjusted right to work scheme in March 2020. The scheme, originally scheduled to end on 5 April 2022, has been extended until 30 September 2022.
Adapting and revising internal procedures is vital to ensure compliance with the new rules. A Right to Work check is required for all prospective employees, including British and Irish citizens. Each candidate must be given a fair chance to prove their eligibility for employment.
Even if an employer assumes the employee has the right to work, if they fail to conduct a right to work check, they may face a civil penalty. In the event of a failure to perform the right to work checks correctly, sanctions may include:
In the event that an employee has only been permitted to work in the UK for a limited time, you will need to recheck their ability to work when their permit expires.
As shown above, not all individuals will be eligible for the new online right to work check. A person can request confirmation that they are legally allowed to work in the UK through the Employer Checking Service ("ECS") of the Home Office. ECS can be used in the following situations:
The ECS can be accessed via the government website by entering the individual's details (name, date of birth, Home Office reference number, etc.). Requests are typically answered within five working days, but this can be subject to delay.
A Positive Verification Notice ("PVN"), valid for six months, will be issued if the Home Office verifies that the individual is eligible to work in the UK.
A valid right to work share code, which may be generated online using the 'Prove your right to work' portal, is required to complete their right to work checks. The share code is valid for 30 days.
IDSPs and employers must follow Home Office identity verification criteria in order to use these services. For employers:
While the share code system is free for employers, the IDSP could cost employers between £1.45 and £70 per check for British and Irish citizens. It is not mandatory for employers to use this system and they can continue to conduct manual checks on British and Irish citizens' right to work.
Biometric cardholders who were screened for right to work prior to 6 April 2022 do not need to undergo a retrospective check. On the provision, a physical card was used to conduct the check.
If the initial checks were undertaken in line with the guidance applicable at the time the checks were made, employers would maintain a statutory excuse against civil penalties.
Employers who conduct retrospective checks must do so for all employees, not just non-UK nationals, in order to avoid any discrimination claims. Employers are also responsible for terminating employees if the retroactive check reveals they are not authorized to work.
Candidates who cannot present their documents, such as individuals who have outstanding applications with the Home Office, should obtain a Positive Verification Notice (PVN). PVNs provide a statutory excuse for six months. After this point, another PVN will be required unless the worker can present themselves in person for a right-to-work check or in the meantime, prove that they are entitled to work under the adjusted procedure.
The failure to follow these procedures can lead to a civil fine of up to £20000 and in extreme cases, a criminal conviction
The Home Office can charge you with a crime if it determines that you knew or should reasonably have known that the individual was working illegally. Your sentence could be up to five years in prison if you don't comply with the right to work check.
A sanction imposed on an employer may also have an impact on the employer's sponsor license. As a result, all reasonable steps should be taken to ensure that all employees have the authority to work in the roles for which they have been hired.
In cases where mitigating factors exist, but the right to work is not fully compliant, the Home Office can reduce the civil penalty. For each of the following four mitigating factors, the penalty is typically reduced by £5,000:
For a first breach, the penalty can be reduced to zero. If it is not the first offence, it is not a guarantee that the Home Office will apply its discretion to reduce the penalties beyond those listed here. In addition, a civil penalty recipient will be named by the Home Office and that information made public.
It is the responsibility of employers to ensure that the workers are legally entitled to work in order to avoid paying a fine for hiring an unauthorised hire.
To properly assess an applicant’s right to work, the following documents must be presented:
These documents can be used to verify and confirm whether the person has the right to work and when their leave expires (if relevant).
The UK government is introducing changes to how employers are expected to verify the right to work of both current and prospective employees.
Employers will be required to conduct online right to work checks starting on 6 April 2022 for those with a biometric residence permit ('BRP'), a biometric residence card ('BRC') or a frontier work permit ('FWP'). Right to work checks will no longer be permitted to be conducted using a physical BRC, BRP or FWP after this date.
For detailed information about these changes and how your business may be impacted, please visit the.
If you’d like to speak to someone at Zinc about these changes and how our platform supports scaling businesses with compliant hiring,