How to conduct right to work checks in 2022

Right to work checks and the introduction of online checking

As a reminder, the starting point in terms of navigating the complex issue of right to work checks, is that in order to comply with the legal obligation to prevent illegal working, an employer must:

• Carry out “right to work” checks on all prospective employees before the employment starts (which essentially consists of obtaining, checking and copying the requisite ID documents)
• Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK.
• Keep up to date records of all the checks carried out.
• Not employ anyone it knows or has “reasonable cause to believe” is an illegal worker.

Further, increased measures to combat illegal working mean that employers in breach of their obligations may now be liable

• A civil penalty of up to £20,000 per individual employee (who does not have the right to work) may be imposed if an employer employs someone without the right to undertake the work for which they are employed.
• A criminal offence will be committed if an employer knew or had “reasonable cause to believe” that the employee did not have the appropriate immigration status.

A new optional online system for right to work checks will come into effect for British and Irish citizens with a valid passport (or a valid Irish passport card) from 1 October 2022. Individuals will be able to verify their identity and right to work status remotely, by uploading an image of their passport using a certified Identify Service Provider (the Government website lists the certified providers). Employers will need to pay a fee for using this new system, with costs from providers starting at around £2 per check. However, as this is an optional process at present, employers can continue to carry out manual right to work checks for British and Irish citizens if they prefer. Digital checking seems a simpler and easier solution to carrying out right to work checks, and the COVID-19 pandemic has proven that organisations can adapt to a digital system within a few days.

The NHS in particular was a great example during the pandemic of how efficient an online checking process could be, in that introducing an online system reduced onboarding time by 14 days, and saved over £1 million. Given the current labour market and staff shortages across many sectors, these could be hugely important considerations for many organisations.

Please note, the introduction of the digital checking scheme from 1 October 2022, coincides with the ending of the temporary concession during the COVID-19 pandemic, which has allowed employers to check scans or photographs of right to work documents (rather than originals), which is set to come to an end on 30 September 2022. After this date, employers must follow the right to work check process detailed within the updated guidance (An employer’s guide to right to work checks: 6 April 2022 (accessible version) – GOV.UK (www.gov.uk)). This is the latest in a number of extensions by the Home Office, and so employers should pay close attention to see if there are any further announcements in due course.

Right to work checks for former members of staff

Given the uncertain recruitment market, and the ‘great resignation’ effects that have stemmed from the COVID-19 Pandemic, one important consideration for employers is what needs to be done with staff that opt to return to their previous employer after a short time working elsewhere.

In summary, employers need to keep right to work records for the entirety of employment, and for 2 years after termination of employment, and this duty is not impacted by the employee returning after a few months. Aside from anything else, it is worth highlighting that although the obligation to carry out right to work checks applies to prospective employees, the active duty to prevent illegal working exists for the entirety of the employment relationship.

If the checks have been carried out over several months previously then it seems unlikely that this would be regarded as “a reasonable time period before the employment commences” (which is what is required under the home office guidance – Right to work checks: employer guidance – GOV.UK (www.gov.uk)).  If the individual had no time limit on their right to remain in and work in the UK at the time the previous check was made, some employers may consider it tempting to skip this step on re-engagement, on the basis that the risk of liability may seem low. However, this approach runs the risk of discriminating against non-British staff, and accordingly, the safest approach is to take a consistent approach and obtain the documents required again.