RIGHT TO WORK | Updated rules for employers

At the end of January, the Home Office updated their guidance on right to work checks. New versions of the guide are issued each year – and this year there are two important changes to note.

Often, new guidance on right to work checks is characterised by the government cracking down on organisations that employ illegal workers and making it harder for them to get away with it. However, the changes introduced for 2019 should be a welcome change for employers, as they’re intended to not only reduce illegal working but also to simplify and modernise the necessary checks so that it is easier to prove an individual’s eligibility to work in the UK.

What’s new?

1.The introduction of online right to work checks

Since April 2018, employers have been able to use the online Right to Work Checking Service on GOV.UK for up-to-date, real-time information about migrants’ right to work in the UK. However, until recently, employers had to also conduct a manual document check alongside this.

Under the new rules, if an individual has an immigration status which can be checked using the online service, employers will be able to rely solely on the online checking service without the need to check paper documents. This would mean that an online check would suffice for:

  • Non-EEA nationals who hold biometric residence permits or residence cards; and
  • EEA nationals who have been granted settled status under the EU Settlement Scheme.

By demonstrating that you have conducted an appropriate online check, you will have a statutory excuse against liability for a civil penalty if it later comes to light that an employee has been working in the UK illegally, or that they were not permitted to undertake the type of work they were employed for.

Remember, you will still need to…

  • Satisfy yourself that the photograph on the online right to is of the employee.
  • Retain a copy of the online check for at least two years after the employment ends.
  • If the employee’s right to work is time-limited, you will need to conduct a follow-up check shortly before it is due to end to ensure that they are permitted to continue working in the UK.

2. An amended list of acceptable documents

The documents you may accept from a person to demonstrate their right to work will depend on whether they have a permanent or temporary right to work in the UK. These are set out in two lists – List A and List B. You can find more information here.

For those with a permanent right to work in the UK, the updated guidance removes the requirement that a British birth certificate must be the full (long) certificate. Under new rules, employers can rely on either a short or a long UK birth certificate as proof of a person’s a right to work, accompanied by an appropriately documented national insurance number.

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Keep in mind that…

  • While conducting right to work checks may be the responsibility of one of your members of staff, it is you who will be liable for the penalty if an individual is found to be working illegally and you have failed carry out the necessary checks.
  • If you are given a false document, you will only be liable for a civil penalty if it is reasonably apparent that it is false (that is, an untrained person, by examining the document carefully but briefly, could reasonably surmise that the document isn’t genuine).
  • You must keep a record of every document you have checked. This can be either a hardcopy or a scanned copy of the original and must be in a format which cannot be manually altered, such as a jpeg or pdf document.

Our advice

While keeping up with the yearly changes to right to work checks may feel like a never-ending challenge, it’s at least good news for employers this time around. It may take a little time to review your existing procedures, but the consequences of being complacent with your checks can be disastrous, with fines of up to £20,000 per illegal worker that you employ.

If you need advice on right to work checks, are dealing with a situation where an employee cannot provide the relevant documentation, or just want to make sure your current process is compliant, Ellis Whittam’s qualified Employment Law Advisers can help. For a free consultation, contact us on 0345 226 8393.

Keep up to date with right to work checks

Director of Legal Services

James Tamm

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