Beginning today, April 6 2022, important changes come into effect regarding how employers conduct right to work checks for their employees. This article outlines these changes and the potential consequences of failing to carry out compliant right to work checks.

Why do I need to conduct a right to work check?

You should conduct a right to work check on all employees before they start work and you must complete additional checks for employees who have been granted permission to work in the UK, before their permission expires. If you have conducted compliant right to work checks this will provide a statutory excuse from civil and criminal penalties if it is later found that your employee was working in the UK illegally. Conducting right to work checks is also an essential duty if your business is a sponsor.

If you do not conduct a compliant right to work check for your employees you run the risk of employing them illegally and incurring civil and criminal penalties, including:

• a penalty of up to £20 000 per illegal worker;
• criminal conviction carrying a potential prison sentence of up to five years and an unlimited fine if you knew or had reasonable cause to believe that you were employing someone illegally;
• closure of the business;
• seizure of earnings made through illegal working; and
• if you are a sponsor, revocation of your sponsor licence.

There may also be additional harm to your business’s reputation if it is publicised that you were employing individuals illegally.

Online right to work checks

From April 6 2022 employers must conduct an online right to work check for employees who hold the following documents:

• Biometric Residence Permit (BRP)
• Biometric Residence Card (BRC)
• Frontier Worker Permit (FWP)

To conduct an online check the employee or potential employee first completes an online form. This generates a share code which they should provide to you and is valid for 30 days. You will then need to enter this code and the employee’s date of birth on the “View a job applicant’s right to work details” page of the GOV.UK website. You must check that the details and the photo match those of the employee. This must be done in the presence of the employee, either in person or via a video link. Finally, once you have confirmed the employee has the right to work in the UK, you should download the page and keep a physical or electronic copy as evidence that you have completed the check. You should keep the copy for the entirety of the individual’s employment and for two years after termination.

For individuals with a British or Irish passport, you must continue to conduct manual checks or, until 30 September 2022, you may conduct a virtual check. Virtual checks were introduced at the beginning of the pandemic as a way to accommodate social distancing and the increase in employees working from home. Their use has been extended several times by the Government.

To conduct a virtual check, you must compare an electronic or paper copy of the employee’s documents with the originals they hold up for you to see while on a video call. You should then record the date the check was made and that it was an adjusted check.

What if I have already conducted a right to work check?

If you have conducted a compliant in-person or virtual right to work check for an employee who holds a BRP, BRC, or FWP before 6 April 2022, you will not need to complete a retrospective check using the new online system.

Identity Service Providers

Another change effective from 6 April 2022 is that employers who outsource right to work checks for British or Irish nationals to a certified Identity Service Provider (IDSP) will retain a statutory excuse against illegal working penalties. IDSPs will charge a fee for their services, which may range up to £90 per check. Employers do not have to use an IDSP and can continue to conduct manual checks for employees with British or Irish passports, or virtual checks until 30 September.

If you decide to use an IDSP, you must ensure that the IDSP is certified to the required standards. A list of certified IDSPs will be published by the Government. You will have to provide an image of the employee to the IDSP and confirm that the image is a true likeness of the employee. Once the check has been completed you should retain a copy of the check and the documents checked for at least two years after the employee’s employment has ended. 

Right to work checks are an important part of the employee onboarding process, and failing to conduct compliant checks can have significant consequences for your business. Our Employment Law team has provided the above commentary for information only. We do not provide immigration law advice ourselves but through our associates at Davidson Morris LLP. You are advised to seek independent professional legal advice on matters of immigration law and we would be more than happy to facilitate that connection and assist with any other matters of Employment Law you may have.  To discuss any requirements, you can contact us on 023 8071 7717 or email employment@warnergoodman.co.uk