Right to Work Checks Post-COVID

During the COVID-19 pandemic, reducing the amount that employers and employees needed to share space and surfaces was key to tackling the impact of the pandemic. Whilst the coronavirus hasn’t gone yet, the government has decided it no longer needs to enforce the last of the preventative measures and is slowly working to sunset those laws.

One of those changes is the digital Right to Work check. An employer has the responsibility by law to prevent illegal working, by conducting basic Right to Work checks during the hiring of new employees to the business. Traditionally, this was done by conducting manual document checks, where original documents were presented to the employer after the offer was accepted but before a contract of employment and the start of work. These documents included but were not limited to passports, biometric residence permits, work visas, and other documents that could prove that an employee was not only who they said they were but that they had either citizenship within the UK or were granted permission to work by visa or other method.

To help enforce lockdown, prevent the spread of the coronavirus on document surfaces and to reduce unnecessary travelling and office use, the UK government altered the Right to Work check by allowing employers to accept digital copies of these documents, such as photographs, scans or faxes. This allowed workers who were pursuing employment to remain at home in order to comply with lockdown measures, to maintain their health if shielding, or to simply contribute to preventing non-lockdown spread.

From October 1^st 2022, this will no longer be the case, and an employer is expected to conduct full physical Right to Work document checks.

There are three methods by which an employer may conduct these checks.

The first is a manual document-based check. This will involve the prospective employee bringing physical versions of the documents in the government’s A or B lists. These lists establish how long someone has a right to work – for list A, this is a continuous list, for citizens, naturalised immigrants, or citizens of the Channel Isles, Isle of Man, or Ireland. List B is for non-citizens who are entering to work on some kind of work visa, who are in the process of naturalising, or are otherwise not citizens but do have a positive right to work for a period within the UK.

Be aware that names may be different across documents, but an employee presenting those documents must also present evidence of why those names are different, such as a marriage certificate, divorce decree, or Deed Poll.

To carry out this check, the employee must present original copies of these documents to their prospective place of work. Whoever processes these documents must check that not only are the documents genuine, that they are in date, and that they are all accurate, but that the employee is the rightful holder of those documents and that they are in fact allowed to carry out the kind of work the employer is offering. They must also make clear copies of those documents in a format which cannot be manually altered, and for those document copies to be retained securely. The employer must also make record of the date the check was carried out.

The second method, which is mandatory for anyone presenting a Biometric Residence Permit, Biometric Residence Card, or a Frontier Work Permit, is to carry out an online check through the Home Office’s portal. This will require the employee to present themselves for the check, whilst the employer verifies they match the record being kept by the Home Office of who they are claiming to be, by checking photographs kept on the Home Office Portal and verifying the information presented by the employee is accurate. They must also retain evidence of the online right to work check.

Employers may also use the services of an IDSP, or Identity Service Provider. This option is only available to those with current British and Irish nationals with current passports and comes with other caveats. Namely, that the IDSP will take a fee for each applicable check, and that if the IDSP takes the check incorrectly and there is not actually any right for the employee to work, the employer is still responsible and liable for any civil penalties for illegal work that takes place. The employer is also still responsible for carrying out their own verification checks to ensure that the person is who they claim to be.

We would like to emphasise that this article only covers the basics of physical Right to Work checks. It is vital that you ensure the Right to Work checks are done correctly and that the data you handle is stored in accordance with GDPR. If you need any more advice or assistance in carrying out a Right to Work check, please feel free to get in contact with us and we would be more than happy to help.

Do not hesitate to contact us via email, [email protected], or phone, 0333 006 9489, for a no-obligation chat to find out whether our services are right for you.

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