HR Expert: Changing right to work checks
A client is taking on a new employee. I have told them they will need to complete a right to work check on them, but we’re not sure how to approach it. The individual is Irish, does this make any difference to the checks that need to be made? I have seen that the rules are going to be changing soon, will this affect how my client should carry out this check?

You are right to tell your client that a right to work check is needed; all UK employers are legally bound to prevent illegal working. The right to work in the UK for everyone whom your client employs must be checked, even if they are a UK national. Failure to complete these checks properly, or at all, could mean a significant civil penalty for the business of up to £20,000 per worker, and even criminal sanctions – something no doubt your client are keen to avoid!

Right to work checks need to be completed before the employment begins. Once the check has been completed and the right to work has been established, your client will have an ongoing ‘statutory excuse’ should they be accused of employing someone illegally.

For Irish citizens, the checks are the same as for UK nationals, although their documents will look different. There are currently three ways in which a check can be conducted. This will change on 30th September 2022, when measures brought in temporarily for COVID-19 will cease (documents checked in this way however will not need to be re-checked).

From 1 October 2022, your client will be able to either check documents manually, or use a third party Identity Services Provider (IDSP) to complete a digital check. These digital checks have been in place since April 2022 and were brought in following the success of the temporary COVID-19 digital checks, which allowed employers to conduct right to work checks entirely remotely, without the need to have formal documents in their presence.

Manual checks have been in place for some time, and hopefully your client is familiar with how to conduct them. These checks follow three steps: Obtain (the original documents), check (are they genuine and is the prospective employee their rightful holder) and copy (a copy of the documents is taken for future reference). Copies need to be kept throughout the employment, and for two years after.

The drawback of manual checks were highlighted by COVID-19 lockdowns. With ‘stay at home’ orders in place, and all but essential travel banned, attending a workplace to show documentation was no longer a practical or desirable option. Digital checks were therefore created, which allowed the employer to check documents virtually, via a video call and electronically copied original documents.

This is being permanently replaced by Identity Document Validation Technology (IDVT). These checks are completed by IDSP’s (mentioned above), who will provide confirmation of right to work status. A list of certified IDSP providers is available on gov.uk. Note: it is not necessary for your client to use a certified provider, however if they do not they must be careful to check the provider they select completes the required checks.

The use of IDSPs and IDVT is a step forward into the increasing digitalisation of employment. But your client must be careful not to discriminate against those who, for whatever reason, do not have a passport or Irish identity card that can be used for these checks. In these circumstances, the traditional manual check method remains the best.

 


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