Right to work checks are a critical component of employment law in the UK, designed to prevent illegal working by ensuring that all employees have the legal right to work in the country. These checks are mandatory for all employers and must be conducted before an individual commences employment. The Home Office has recently updated its guidance on right to work checks, reflecting changes in the legal landscape and technological advancements. These updates are crucial for employers to understand and implement to avoid significant penalties and ensure compliance with immigration laws.
Key changes in the Home Office guidance
Encouragement for checks on contractors and agency workers
One of the significant updates in the Home Office guidance is the emphasis on conducting right to work checks not only on direct employees but also on contractors and agency workers. Previously, the guidance suggested that employers "may wish to check" the right to work documents for these groups. However, the updated guidance now strongly encourages employers to ensure that their contractors and labour providers carry out right to work checks in accordance with the guidance. This includes anyone in the supply chain using a substitute to perform work on their behalf. This change highlights the increasing importance of due diligence in the employment supply chain to prevent illegal working.
Sponsor licence holders' obligations
For employers holding a sponsor licence, the guidance has been further clarified. While these employers are not required to establish a statutory excuse for workers who are not their direct employees, they must still carry out right to work checks and retain evidence of these checks to comply with record-keeping duties. Failure to adhere to these requirements can lead to the revocation or downgrading of their sponsor licence, which can have severe implications for their ability to employ foreign nationals. This change underscores the importance of maintaining robust compliance procedures for sponsor licence holders.
Legal implications of non-compliance
Civil and criminal penalties
Employers who fail to conduct the prescribed right to work checks face significant legal risks. Non-compliance can result in civil penalties of up to £60,000 per illegal worker, a substantial increase from previous penalties. Additionally, there are potential criminal penalties, including imprisonment and unlimited fines, for knowingly employing individuals without the right to work in the UK. These penalties highlight the serious nature of compliance with right to work checks and the need for employers to stay updated with the latest guidance.
Impact on business operations
Beyond legal penalties, non-compliance with right to work checks can disrupt business operations. If a worker is found to be without the right to work, they must be immediately removed, which can cause significant disruption to business delivery. Furthermore, non-compliance can affect a company's reputation, insurance, and other accreditations, potentially leading to invalidation or revocation. This can also impact other sponsored employees, as action against a sponsor licence holder can affect all staff employed via sponsor licences.
Practical steps for employers
Reviewing and updating procedures
Employers are strongly advised to review and update their right to work checking procedures to align with the latest Home Office guidance. This involves ensuring that all checks are conducted consistently and correctly, whether manually, digitally, or online. Employers should also ensure that their HR teams are trained and up-to-date with the new requirements to prevent any lapses in compliance.
Implementing Identity Document Validation Technology (IDVT)
The use of Identity Document Validation Technology (IDVT) has been encouraged to support manual and online right to work checks. IDVT can be used for digital identity verification, particularly for British and Irish nationals holding valid passports. Employers using IDVT must ensure that the checks meet a minimum level of confidence and that the photograph and biographic details are consistent with the individual presenting themselves. This technology provides an additional layer of security and efficiency in conducting right to work checks.
Record-keeping and evidence retention
Maintaining accurate records of right to work checks is crucial for establishing a statutory excuse against civil penalties. Employers must retain clear copies of the checks conducted, whether manually or digitally, for the duration of employment and up to two years post-termination. This documentation serves as evidence of compliance and can protect employers from potential legal challenges.
Additional considerations
Reputation management and ESG commitments
In today's business environment, reputation management is increasingly linked to compliance with legal and ethical standards. Employers are encouraged to integrate right to work checks into their Environmental, Social, and Governance (ESG) commitments. This involves conducting due diligence on all entities within their supply chain to ensure compliance with best practices. Such measures not only protect the company from legal risks but also enhance its reputation and value in the market.
Training and support
Employers should consider providing training and support to their HR and recruitment teams to ensure they are well-versed in the latest right to work requirements. This can include workshops, seminars, and access to legal experts who can provide guidance on complex cases. Investing in training can prevent costly mistakes and ensure that all employees involved in the hiring process are equipped to handle right to work checks effectively.
Future developments
As the Home Office continues to update its guidance and move towards a digital-by-default approach, employers should stay informed about future developments in right to work checks. This includes potential changes in technology, documentation requirements, and legal obligations. By staying proactive and adaptable, employers can ensure ongoing compliance and mitigate risks associated with illegal working.
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