Right to Work UK Legislation: The Ultimate Employer’s Guide 2020
This guide is intended for the use of employers only - it isn’t designed for individuals seeking guidance on their right to work status in the UK. For information on this, please refer to the Government Immigration Website.
We have expertise in the area of compliance with Right to Work legislation and ID validation. Our product Rightcheck has been adopted by a wide range of organisations across all industry sectors as an initiative to transform and digitise HR operations. Consequently, we have built up a solid understanding of the challenges and issues organisations face in addressing compliance with Right to Work legislation and how Rightcheck can save time, money and improve compliance. It is overwhelming apparent to us that often organisations are unclear about what compliance with Right to Work legislation actually dictates. Hence this guide - designed to equip you with a good understanding of Right to Work legislation, your responsibilities and the implications of BREXIT.
1.What does Right to Work legislation encompass?
The legislation has been in place since 2008 placing an onus on employers to assist in the prevention of illegal working, which is considered a key driver for illegal migration. In essence, this is achieved by the employer conducting Right to Work checks on all new employees. The check is aligned to employee background checks, however there is an important distinction – unlike any other pre-employment background checks, checking an individual’s Right to Work status is a mandatory.
Be aware, as a director/business owner you are liable for the compliance of the actual check as performed by a member of your staff. Furthermore, the check must be performed by you the employer – it cannot be ‘outsourced’ to a third party, such as a recruitment agency or your professional advisor.
Aside from the legal obligation to conduct Right to Work checks on all employees, as the Home Office guidance states you should consider all other ‘workers’ engaged in your business:
“Even if you are not the direct employer of the workers involved in your business, there are compelling reasons why you should seek to know that your workers have a right to work. If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. There could be adverse impacts on your health and safety and safeguarding obligations, as well as the potential invalidation of your insurance if the identity, qualifications and skill levels of your workers are not as claimed. Accordingly, you may wish to check that your contractors conduct the correct right to work checks on people they employ”.
The consequences of a breach have become increasingly severe. Civil penalties and director
prosecutions are highly damaging, and the risks of non-compliance should be appraised by all organisations.
2.What constitutes a Right to Work check?
In simple terms, it’s a process that you (the employer) must undertake whenever you are hiring. This involves checking the correct combination of ID documentation for a candidate to establish if they have a Right to Work in the UK.
Whilst it’s not a legal requirement to check the Right to Work of ALL candidates within a recruitment process, this is certainly best-practice and further evidences your anti- discriminatory/anti-slavery credentials.
The check itself must be conducted prior to the commencement of employment. You must also conduct re-checks in situations where individuals have a ‘time-limited’ documentation (e.g. visas). Furthermore, in situations involving TUPE it is advised by the Home Office that re-checks are conducted on all employees who are transferring into the acquiring organisation.
Five common myths we encounter about the circumstances when a Right to Work check is required are:
- ‘We are an SME/have less than 5 employees’
- ‘We only employ people who have already worked for other companies in the UK’
- ‘We don’t employ foreign workers, only UK nationals’
- ‘We don’t need to check self-employed, volunteers, temp workers or students’
- ‘We don’t need to check someone working a trial, or probationary period’
The short answer is that all these assumptions are wrong. They have the potential to land the organisation concerned in very hot water. The legislation is clear - there are no exclusions, Right to Work checks must be undertaken on all individuals engaged in working within your organisation (paid or unpaid, temp/casual or full-time). This is regardless of the individual’s nationality, or immigration status and includes all UK citizens.
There are strict rules governing how to conduct a Right to Work check for it to be considered compliant. The rules are outlined in the Home Office Guide for Employers, be warned it is a lengthy read! To gain a thorough grasp of your responsibilities as an employer you will need absorb all aspects and ensure this is cascaded to each of your colleagues involved in recruitment.
The alternative is to consider a technology solution, such as Rightcheck, that has all this guidance built-in as embedded logic. This can make the process simple and intuitive for anyone charged with undertaking Right to Work checks, making it unnecessary for them to have a detailed understanding of this Home Office guidance.
3. What are the risks of non-compliance?
The Government takes illegal immigration seriously; UK Visas and Immigration is part of the Home Office with responsibility for policing the legislation. They have extensive powers to pursue and investigate any suspected breach by employers and also to undertake activities of an advisory/preventive nature. These powers can cause significant disruption to a business that may have inadvertently fallen foul of the legislation.
Clearly, the vast majority of businesses will actively strive to comply and not wish to leave themselves vulnerable to the risks of non-compliance. Failure to fully appraise and take mitigating actions risks a breach.
The penalties are severe. Designed to be punitive and deter organisations neglecting their responsibilities or failing to take adequate steps to ensure compliance across the organisation. Non-compliance can give rise to fines (up to £20,000 per worker), prosecutions for directors/business owners and loss of trading/sponsorship licences. Furthermore, the organisation will find themselves on a ‘name and shame’ list of offenders that the Home Office routinely publishes – certainly not good publicity.
Hence, there is a real risk that just one incidence of non-compliance could be disastrous for the business. In a modern organisation, with a typical HR structure, ensuring compliance across all facets of the business and avoiding an incidence does creates a challenge: With recruitment devolved to line/local managers, there is a need to ensure consistent adherence to a compliant process.
When undertaking risk assessments, do not forget to take into account the related matter of GDPR compliance. This aspect is also covered within this guide.
However, there are practical steps that organisations can take to mitigate against the risks of non-compliance and establish a ‘statutory excuse’ from prosecution – the subject of our next section.
4. What is a ‘Statutory Excuse’ and how is it acquired?
A statutory excuse is in effect ‘evidence’ that you undertook a compliant check when hiring an employee. When established, the statutory excuse renders the business immune from prosecution should it subsequently transpire that you have inadvertently hired an illegal worker.
The required evidence is acquired when you conduct a Right to Work check in exact accordance with a prescribed process, as defined in extensive Home Office guidance. In following this process exactly a ‘Statutory Excuse’ is established. The challenge is to ensure that every one of you staff who undertake Right to Work checks are:
- Familiar with and know how to apply the Home Office guidance
- Keep updated when this guidance changes (which is does periodically)
- Consistently apply this guidance when hiring
- Maintain appropriate records, evidence of the check and copies of necessary ID documentation
You will need clear HR policies and robust processes that address each of these points. This process will need to include an audit trail for each check undertaken to record when the check was conducted, by whom and which documents were captured. This audit trail and copies of relevant documents must be stored securely and made available for inspection on demand by UKVI.
Businesses may assume a quick glance and photocopy of a candidate’s ID documents constitutes an adequate check and the establishment of a ‘statutory excuse’. This approach risks non-compliance and should be overhauled as a priority.
The bottom line is that you need to be confident your process is clearly defined and consistently followed. This must be across all your organisation’s recruitment activity, to always establish a statutory excuse.
5. What is necessary to undertake a compliant Right to Work check?
A compliant Right to Work check consists of three key elements:
a. Obtaining the appropriate ID documents
b. Inspecting the ID documents for their authenticity
c. Copying and retaining the check and associated ID documentation
It sounds straightforward, but the details are a little more complex.
a. Obtaining the appropriate ID documents
The relevant ID documents for a Right to Work check are detailed in the Home Office guidance as ‘list A and list B’. You will need to inspect one or more of the documents on either of these lists; which documents depends on the nationality/immigration status of the candidate and the types of the documents they have available.
So, how do you know which documents are required to avoid the risk of non-compliance?Well, you can read through the Government Employer’s Guide which details the required combination. You also need to revisit this guidance on a regular basis, given it is subject to update without prior notice. Or, you can adopt a digital solution, such as Rightcheck, which will automatically determine the correct combination of documents that you are required to inspect.
You must complete the check with the candidate in person and inspect their original documents – asking the candidate to bring in photocopies is not acceptable. There is the possibility to conduct the check via video link, however this is rarely practical given the need to be inspecting the original documents in your hand.
b. Inspecting the ID documents for their authenticity
This can be challenging. Whilst the Home Office does not expect you, or your recruitment staff to be expert ID document inspectors there is an expectation that you will take reasonable steps to verify the ID documentation you are presented. Once again, the Home Office do offer a level of guidance that can be studied to help with this task.
For document validation, you need to be reasonably certain that the document is authentic and a careful review, this should include checking:
- The quality of the document - is there any evidence that is has been tampered with?
- The document dates – are they valid, or have they expired?
- The document image – is it consistent with the person in front of you?
- The document birth date – is this consistent with your view of the candidate?
This is not an exhaustive checklist and understandably organisations may have concerns about the ability of the untrained eye to verify ID documentation. Hence, the Home Office advocate the adoption of support technology.
Digital solutions can check these elements and may have other technologies to ‘automate’ the validation process. In the case of Rightcheck, document validation includes reading a document’s biometric chip, machine readable zone and deploying facial recognition technologies to provide a facial match to the candidate.
c. Copying and retaining the check and associated ID documentation
Once you’ve obtained the correct ID documents and assured yourself that they are genuine, you will need to retain an ‘attested’ copy. This means copies are signed and dated. The copies have to be clear and of a good quality. For certain documents, copies must include the front and the back of the document - even in certain circumstances if the back is blank.
You will also need to ensure you have a robust process for capturing and acting upon any ‘time-limited’ documents. These include visas and other immigration documents with expiry dates that will effect an individual’s right to work status.
You may choose to retain copies in paper form, or digital copy/PDF. In either case, recognising the sensitive/personal nature of the data, you need to retain these copies safely and securely.
Once you have conducted the check and obtained the ID document copies, you have a legal obligation to retain the data for the duration of the individual’s employment PLUS two years after the employee has left the organisation.
You may wish to explore digital solutions that can provide for the safe retention and on-demand access of your Right to Work checks. Rightcheck will also automate the process of managing key dates i.e. dates of re-checks required and employee leaver dates.
6. How does GDPR impact Right to Work checks?
There is a statutory obligation for organisations to undertake Right to Work checks. As such, copies of sensitive identity documentation obtained in performing these checks needs to be retained.
The requirement to undertake a Right to Work checks is not affected by GDPR. Article 6 of the regulation includes a legal obligation for processing: ‘The processing is necessary for you to comply with the law (not including contractual obligations)’. However, this is not the end of the matter. Organisations need to be aware of the data processing issues arising from GDPR; this is especially so given the sensitive nature of the data being handled.
Special category data is personal data which the GDPR defines as more sensitive. As such, it needs more protection. Right to Work checks require the examination, copying and storage of sensitive personal information – passports, visas, birth certificates etc.
Article 5 of the GDPR requires that ‘personal data’ (information which could directly or indirectly identify an individual) must be:
a) processed lawfully, fairly and in a transparent manner in relation to individuals;
b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;
c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;
e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals; and
f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.”
Consequently, in relation to GDPR, it is recommended organisations review Right to Work policies and procedures paying close attention to the following:
1. Examining and retaining the right documents
The organisation needs to be confident that its recruitment staff are only checking the essential documents. They must also be following the correct procedure for examination and retention.
2. Data storage methods and procedures
Are your Right to Work checks securely stored and protected? Particularly exposed are organisations with many, remote sites. This is due to the storage of checks in both central and remote locations.
3. Data deletion
Organisations have a legal obligation to store Right to Work checks for 2 years once an employee has left the business. GDPR increases the emphasis on the need for a robust process to ensure this is a managed process.
7. How will BREXIT impact Right to Work?
Rightcheck is monitoring the situation closely.
Right to Work legislation has been subject to change in the past; on each occasion the logic embedded within Rightcheck has been auto-updated, enabling recruiters to continue to conduct checks in accordance with the prevailing legislation. This assurance provided by Rightcheck applies to BREXIT. If you are reliant on approaches other than Rightcheck, you should be aware of the following information as a minimum.
Following the UK’s official departure from the EU (effective 31 st January 2020), we are now officially in the transition period. The UK Government has provided an update on the position of EU citizens and implications for employers. This outlines your obligations as an employer as follows:
- ‘There is no legal obligation for you to communicate the EU Settlement Scheme, however, you may wish to direct employees to the information that the government is providing;
- It is the responsibility of the individual to make an application to the EU Settlement Scheme. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied;
- You have a duty not to discriminate against EU citizens in light of the UK’s decision to leave the EU as both a prospective and current employer. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application;
- You should not interpret information on the EU Settlement Scheme provided by the government and you must be careful not to provide immigration advice for your employees, unless you are qualified to do so;
- The deadline for applications to the EU Settlement Scheme is 30 June 2021.’
As far as Right to Work checks are concerned there are no fundamental changes. It is mandatory that you have a compliant check in place for all your current employees, including all EU citizens. You must also continue to conduct checks on all prospective/new employees, again including EU citizens.
With 2.5M EU citizens having now applied for settled status, this has repercussions for the way in which employers must conduct Right to Works checks. We recommend you take steps to ensure your recruitment staff what to do know when presented with an ‘online share code’; the Home Office has produced an ‘employer’s toolkit’ that can be referenced. Rightcheck logic already caters for this share code scenario, that employers can encounter today.
What has also been stated by the Government is that a new skills-based immigration system ‘Australian-style points-based’ will be in place by the end of this year (2020). Further details are awaited, including how it will cater for EU citizens seeking to live work in the UK after the EU Settlement Scheme deadline.
What is also unclear is the position of existing EU employees who for whatever reason fail to apply for the scheme by the 30 June 2021 deadline.
Rightcheck will continuously monitor UK policy statements and legislative changes and strive to keep you informed.
8. The Value of Going Digital
This guide indicates there are compelling reasons to consider digital solutions, such as Rightcheck. These benefits can be summarised as follows:
- Ensuring GDPR compliance. Encrypted, cloud-based storage is much more robust than paper-based or local storage. Data deletion can also be handled automatically.
- Reduced errors and administration. Streamlining HR operations to remove inefficient practices that can result in poor candidate experience and potential non-compliance.
- Making it easy and intuitive for recruiting staff to always conduct compliant checks, regardless of the circumstances/documentation/nationality of the candidate concerned.
- Digitising the entire check workflow. Creating for HR control and transparency across the entire organisation’s recruitment activity.
- Making it an obsolete requirement for the organisation to keep abreast of Home Office guidance/legislation changes, with automatic updates provided for by the solution.
Hopefully this guide has helped clarify Right to Work legislation, the associated checks and legal obligations for your business; providing a basis for you to review your organisation’s approach to this critical aspect of recruitment compliance.
Should you conclude you require further help, support or guidance please do not hesitate to get in contact.
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