Legal: Right to work

Nicola Smyrl, partner at the Luton office of Taylor Walton, explains what you need to know with regard to the new system that has been announced for right to work checks...

How employers perform right to work checks is set to change once again following a recent government announcement. However, there is some concern as press reports have appeared to suggest that these new changes will have serious cost implications for employers.

As it stands, it is illegal to employ a person who does not have the right to work in the UK, so checks are not negotiable. Opting to employ a worker illegally will have major consequences for any business owner, and can result in a criminal conviction plus a penalty fine of up to £20,000 per employee. 

On 30th March 2020, the government introduced temporary adjustments to the process to take into account coronavirus restrictions. These adjustments made it possible for checks to be carried out remotely over video calls, with applicants then providing the employer a photo of their documents digitally.

These widespread adjustments to the process will cease to be the norm from 30th September 2022. The general consensus is that going back to the former protocol could be extremely challenging for many employers due to the increase in flexible and home working. As a consequence, the government has now issued guidance on its intentions to introduce an option for carrying out digital or online checks wherever possible.

The new rules

1. From 6th April 2022, those foreign nationals who have either a biometric residence card, biometric residence permit, or a frontier worker permit can be checked via an online system. They will simply need to provide their date of birth and share code to enable an employer to validate their status via the government’s online checking service. This is to be a free service, with manual checks no longer permitted. It will not be necessary to carry out retrospective checks on employees if a manual check was already conducted on or before 5th April 2022.
2. From 1st October 2022, as an alternative to manual checks, employers can utilise certified identity service providers to complete digital right-to-work checks for all British and Irish citizens with valid passports. These digital checks will be carried out for a fee. The process will see digital images of personal documents submitted electronically and verified using identity document validation technology. 
3. Manual checks can continue for any employee not covered by point 1 above. This will cover British and Irish nationals who don’t need permission to work in the UK.

Full details of the amended regulations concerning right to work checks are available on the Gov.uk website. Employers who have been conducting right to work checks under the current temporary adjusted measures will need to consider their approach to these checks in the future. If employers do not wish to return to manual checks, they will also need to factor in the costs of performing these checks in their future budgets.

The experienced employment law team at Taylor Walton can assist employers with any queries relating to the new right to work check requirements or any other employment or business immigration matters. For more information, call 01582 731 161 or e-mail [email protected].

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