Imminent policy updates mean employers will have to use government-certified tech to assess documents if doing so remotely
Half (48 per cent) of businesses are unprepared for the upcoming changes to right to work checks, research has found.
The survey by Xydus polled 501 decision-makers in large UK businesses (with 1,000 or more staff) last month. It also found that more than three-quarters (78 per cent) did not know they could face imprisonment if non-compliant with the new checks.
The changes, which will be implemented on 1 October, mean that, if carrying out digital right to work checks, employers will have to use identity service providers (IDSPs) to conduct these.
The current right to work check guidelines were put in place to allow for remote working during the pandemic. Employers have been able to temporarily carry out checks using video calls, emails or through apps, instead of using original copies of documents. These measures are due to end on 30 September.
If employers want to carry out digital checks, the government recommends employers use certified IDSPs – meaning that only digital images of personal documents taken using the certified technology are permitted. Records must be kept for two years after an employee exits the business.
In-person right to work checks remain unaffected.
Businesses could face a civil penalty of up to £20,000 per non-compliant worker, lose the ability to sponsor work visa applications for foreign nationals, and even face criminal convictions if they do not comply with the new guidelines.
Despite the fact that 96 per cent of those surveyed were aware of the upcoming changes, some showed lack of awareness on what this means for their checks process. More than a third (37 per cent) thought they would still be able to submit photos via email, while 30 per cent said they could do this over Zoom.
Almost three-quarters (72 per cent) believed driving licences were compliant, despite the fact that this has never been permitted as appropriate evidence of right to work.
Three per cent claimed that they do not conduct any right to work checks at all, and four per cent were completely unaware of the upcoming changes.
“All employers in the UK have a duty to prevent illegal working,” said Chetal Patel, immigration partner at Bates Wells. Checks should be carried out before employment starts, she added, and follow-up checks must be made on employees with time-limited leave in the UK, such as those with a visa.
“Right to work checks done by a recruitment agency or professional adviser aren’t sufficient,” she continued. “If they have been found to have employed an illegal worker, employers will have no statutory excuse if the right to work checks have not been carried out properly. They could face harsh penalties, including an unlimited fine or up to five years’ imprisonment.”
Patel highlighted that while it was not mandatory to carry out digital checks using IDSPs, businesses conducting manual checks will have to build in time to complete this.
Some businesses that answered the survey claimed they could conduct right to work checks after an employee had started their employment, despite the fact that this has never been legal.
“Initial right to work checks shouldn’t be left to the first day of employment,” said Patel. New starters could come into the office to meet the team before their first day, or use an online method after signing the offer letter.
Businesses should add in a right to work clause in offer letters and employment contracts, to allow for termination of a contract in the event that an employee does not have the right to work in the UK, Patel said.
Top priorities for employers now are updating the onboarding process, providing training to staff and creating guidelines on how to conduct checks. “Have a protocol that everyone in the business adheres to,” she said.
Ian Moore, managing director of Lodge Court, said keeping up with regulations was challenging and, for some companies, financially impossible. For firms without a head of compliance or similar role, the responsibility will likely fall to HR. “Creating a project to identify the regulations and the respective requirements should be an immediate priority,” he advised.
