Are you aware of the changes to right to work checks?

In the UK, before you take on a new employee it is a legal requirement to carry out straightforward work checks to prevent illegal working. There will be changes to the right to work checks from 1 October 2022, and employers will need to be aware of these before hiring a new employee.

How are right to work checks changing?

From 1 October 2022 there will only be three main methods of checking an individual’s right to work in the UK. The three main methods are:

• manually by meeting the employee in-person;
• online using the Gov.uk website; or
• by using an Identity Service Provider.

The three initial right to work checks are detailed below and must be carried out before employment begins.

Manual in-person checks

For British or Irish citizens with a current or expired passport, manual in-person checks can be used to verify their right to work. Remote right to work checks, for example via video call, will no longer be permitted from 1 October 2022.

If an in-person check cannot be carried out and the employee holds a valid British or Irish passport, the Identity Service Provider checks detailed below will need to be used.

If the employee is a British or Irish citizen without a passport, their right to work can be verified manually in-person by showing either:

• a birth or adoption certificate from the UK, the Channel Islands, Ireland or the Isle of man; or
• a certificate of registration or naturalisation as a British citizen.

In addition to the certificate, the employee will also be required to show an official letter or document from a government agency (for example HM Revenue and Customs) or a previous employer, showing their name and National Insurance number.

If the employee cannot provide the documentation required for a manual check, and they are an Irish citizen and a frontier worker, they should follow the online procedure below.

Online

The employee’s right to work can be checked online using the Gov.uk website. This method should only be used in circumstances where the potential employee has a Biometric Residence Permit, a Biometric Residence Card, Frontier Worker Permit and an e-visa.

To complete the check online the employee’s date of birth and their share code is required. The prospective employee can obtain this information from the Gov.uk website.

There is no charge to use the online service and it provides employers with a defence against a civil penalty. The employee’s documents will not be seen or checked by employers as the right to work information is provided directly from Home Office systems.

Identity Service Provider checks

Where an individual has a British or Irish passport, but manual checks are not possible due to their circumstances, an Identity Service Provider can be used.

An Identity Service Provider will charge a fee for this service, and this will vary between providers. To carry out the check using an Identity Service Provider, the employee will be required to upload photo evidence of their right to work to an accredited service provider. The service provider will then verify the identity of the employee and their right to work and provide employers with a statutory excuse.

It should be noted that despite engaging an Identity Service Provider to carry out the checks, employers remain liable to ensure that the check was carried out correctly.

What if someone is employed without the right to work?

Penalties could be incurred if the checks above are not properly completed, or if someone is employed and they do not have the right to work. In these circumstances, a referral notice could be sent warning of a civil penalty fine of up to £20,000 for each worker without the right to work. If found liable, a civil penalty notice will be sent with a deadline of 28 days for a response.

If you would like any further guidance in respect of the right to work checks required when taking on new employees, do please get in touch with one of the Employment Team.