Right to Work UK: The Ultimate Employer’s Guide of 2019
We’ve been providing services in the area of Right to Work validation for some time now. As such, we talk to business owners every day about their processes and experiences.
It's clear to us that very few businesses (especially SMEs) are comfortable with what Right to Work actually means for them.
This guide to Right to Work will give you everything you need to know about:
- What Right to Work is
- How it affects you as a business owner
- How to do Right to Work Checks to protect your business
- What you can expect to change in 2019
1. What is Right to Work?
A Right to Work is a legal requirement for anybody wishing to work in the United Kingdom. Other countries also have Right to Work regulations, but we’ll only be covering the UK.
It is part of UK employment law, and is comparable in importance to employee background checks.
The Right to Work is linked to an individual’s immigration status.
For example, you can have a Right to Work by default based on your nationality. Alternatively, you may have to wait until you have been in the UK for a certain length of time, or meet certain criteria to qualify.
Those without a Right to Work cannot legally work in the UK.
Employers are required to ensure that anybody they hire has the Right to Work, or face penalties.
Aside from the legal obligation, as the Home Office points out:
"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 and skill levels of your workers are not as claimed."
2. What is a Right to Work Check?
In simple terms, it’s a process that you (the employer) must follow before you hire someone.
You must also do follow-up checks upon expiry of time-limited Right to Work (like student visas).
A Right to Work check involves checking a candidate’s details and documents to establish if they have the Right to Work in the UK.
Check the Right to Work for ALL candidates within a recruitment process. This shows that you do not discriminate against anyone and can underpin your anti-slavery policy.
Top Tip: Right to Work needs to be checked in any role where an individual is or could be paid for their work. That means that volunteers also need to be checked, even though they are not paid employees!
There are several ways to run a check, but it must follow certain rules to be compliant.
The rules are outlined in the Home Office’s Guide for Employers. Be warned, it’s a lengthy read! In fact, we’ve found that to get a good grasp of your responsibilities as an employer, you would need to read over 250 pages of documentation!
However, this article should provide a great starting point on your road to compliance.We will go into more detail on how to actually conduct a check in Chapter 5: How to do a Right to Work Check.
3. What are the Risks of Non-Compliance?
The Government takes immigration seriously. They will often raid businesses on the back of intelligence and tip-offs. A "tip-off" could be as simple as an anonymous phone call to the Immigration Hotline.
Raids come without warning and involve several immigration enforcement officers entering your business premises. The officers will demand to inspect your Right to Work checks to decide if your employees are legally employed.
Ultimately, they are looking for people without the Right to Work who have managed to gain employment. Should they find any illegal workers, you (the owner) are responsible for providing that employment.
If it’s found that you employed somebody without the Right to Work, you can face one or more of the following penalties:
- Up to £20,000 fine per illegal worker without a “statutory excuse”
- Loss of trading licenses
- Loss of sponsorship licence
- A listing on the Government’s public “name and shame” list
Of course, any of those can result in a hit to your reputation as a responsible and law-abiding business owner. This can then have knock-on effects like losing your franchisee licence, or supply chain contracts.
Also, illegal employees are often detained, leaving you with a diminished workforce.
Many business owners don’t realise they need to do Right to Work checks, or the severity of the consequences if they do them incorrectly, or not at all.
The reality is that your business could shut down on the back of a single error in a Right to Work check.
4. What is a “Statutory Excuse/Defence”?
A "Statutory Excuse" is proof that you did a compliant check when hiring an employee, even if that employee later turns out to have no Right to Work.
For example, this could be a document which outlines:
1. Your checking processes
2. Which documents were checked
3. How you checked them
4. Who did the check
5. When the check was conducted.
Top Tip: Many businesses assume a photocopy of their employees’ documents is a “statutory excuse”. The reality is that this provides no evidence that a check was conducted using a documented process and no audit trail.
You need to be confident your process is clearly defined and consistently followed to always provide a statutory excuse.
As such, you (the employer) must carefully document every step of your Right to Work checks to demonstrate compliance when required.
The Immigration Officers will use their judgement to decide if your proof is adequate. As such, you need to make the audit trail as comprehensive as possible.
Equally, a single element of a check could put you at risk. For example, let’s say you completed a check perfectly, but it’s clear on the photocopy that one of your candidate’s documents is a poorly constructed fake.
The Immigration Officers would assume that you hadn’t checked the document properly and couldn’t have been sure of its validity.
As such, your check wouldn't provide a statutory excuse and you would likely face the penalties mentioned earlier.
a. Obtaining the Correct Documents
The appropriate documents for a Right to Work check are in the Government’s list A and list B.
To complete a check, you will need to obtain, check and copy one or more of the documents on one or both of those lists.
You must complete the check in one go, with the candidate there in person or on a video link. Be aware - In a video link, you still need to be holding the original documents.
Which documents you need to copy 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 you need?
Well, you can read through the Government Employer’s Guide which outlines which combinations are acceptable.
Or, you can use a Digital Solution which works out the correct combinations for you so you don’t risk getting it wrong.
b. How Do You Know if a Document is Valid?
Making it even more challenging, a lot of the documents on the lists have no standard format (e.g. birth certificates).
As such, you may struggle to identify if the document in your hand matches a document in the list. Equally, it can be a difficult to determine if a document is real with nothing to reference it against.
For document validation, you need to prove that you were reasonably certain that the document was legitimate.
To test a document, you need to consider things like:
1. The quality of the document (is the print crisp and clear, and is it in good condition?)
2. The dates (have they expired? Is the date of birth consistent?)
3. The photo (if it matches the candidate in front of you and the other documents)
4. Any evidence of wear or tampering (misaligned security seals/photos etc)
Top Tip: You, the employer, must do the check. One of the biggest mistakes when hiring is the assumption that an HR company, recruiter, or other outsourced service provider can conduct the checks on your behalf.
Only the employer can meet the candidate, conduct the check and inspect the documents.
c. Copying and storing
Once you’ve got the correct documents and assured yourself that they are genuine, you’ll need to retain an ‘attested’ copy. This just means the copy is signed and dated.
The copy has to be clear and of a good quality. It must show the front and the back of the document, even if the back is blank. For passports, the “front” would be the details page.
You can choose to file it as a paper copy, or do what many businesses are doing - Complete the Whole Check Digitally. This will generally store the check on the cloud as a secure copy.
Once you’ve stored the check and the Right to Work document copies, you’ll need to keep it until 2 years after the employee has left the business.
Hint: That can be a very long time! Make sure the check is in a format that is going to stand the test of time (like PDF), as unreadable checks will not give a Statutory Excuse!
6. How does GDPR impact Right to Work checks?
Firstly, let’s talk about “consent” and “necessary processing”.
Many business owners had a good long look at GDPR back when it came in during 2018. If you were one of them, you’ll likely know that the legislation promotes clear and consensual collection and processing of data.
The whole point of GDPR is to make it easier for individuals to know:
1. Who has their data
2. Why they are collecting it
3. What they are going to be using it for
The natural question arises: What are the implications for Right to Work checks?
Article 6 of GDPR states that you are fine to collect and process data if “the processing is necessary for you to comply with the law”. Right to Work is the law, so you are justified in acquiring the relevant data for your check.
But it doesn’t quite end there!
While completing a check, you’ll be collecting what is known as “special category data”. This is data that GDPR classes as being more sensitive (think passport data, birth certificates etc).
There’s a long list of requirements for processing this data type, but in essence, it requires you to:
• Process it in a transparent manner
• Only collect the bare minimum required to satisfy the Right to Work requirements
• Be accurate in the capture, and keep it up to date
• Keep it no longer than is strictly necessary
• Keep it safe and secure
a. What Does That Mean for Your Checks?
1. You need to make sure that you or your staff are only collecting the documents and data that is required to satisfy the Right to Work regulation.
For example, if you’ve copied a valid British passport, you don’t need to copy their driving licence as well. It’s neither a Right to Work document, nor necessary data.
2. You need to keep completed checks safe and secure for as long as is necessary
This means that keeping all your checks in an unlocked filing cabinet is a terrible idea! Even digital copies should be stored in the cloud and password protected/encrypted.
3. Delete the check on time.
This is tough without a Software Solution. You’re expected to set the clock ticking when an employee leaves your business, then delete the check promptly 2 years later.
Other GDPR Considerations
It's worth considering that sometimes you may end up with the personal data of candidates who you didn't end up employing. Depending on the recruiting process, some employers will do full checks on shortlisted candidates to speed up onboarding.
In this case, you are still responsible for safely and securely storing their data for a reasonable length of time. What constitutes as "reasonable" isn't set in stone, but usually you wouldn't want to keep someone's data for more than a few months if you didn't employ them. Anything more than that becomes difficult to justify as "necessary".
7. How Will Brexit Affect Right to Work
We’ll keep this section updated as and when new information comes out, but here’s what we know so far:
There aren’t any clear answers as to what is going to happen when the UK leaves the European Union. However, we can piece together a picture of what’s likely to be expected of employers in the coming months, both pre and post-Brexit.
A certainty is that the legal requirement to check for Right to Work on new employees is going to remain.
We believe a further certainty is that the process will become more complex. We are already seeing new categories of citizenship emerging, such as ‘EU Settled Status’. This makes it increasingly important that you not only have a robust process in place today but also a method to monitor and respond to changes in legislation to keep you up to date and always compliant.
There are a few ways to equip yourself for the uncertainty of the next few months:
1. If you haven’t already, familiarise yourself with the Current Right to Work Legislation. Be warned, it’s a long read!
2. Conduct a risk assessment of your business and examine your current process.
Find and fix gaps from both a Right to Work and GDPR perspective. If you don’t have anybody qualified for this in your business, you can reach out to outsourced HR services who may be able to look over your process. We can also give you a Free Consultation to help you fix any issues.
3. Digitise the process.
It can deliver centralised, secure storage of sensitive data, ease your transition and allow you to adapt to any changes in legislation. For example, the Rightcheck App updates automatically whenever the law changes.
The Government are pushing for companies to move away from paper-based systems, that are rarely found to be complaint, and adopt a dedicated digital solution offering higher levels of compliance assurance.
The Home Office have recently introduced a service providing certain, limited categories of individuals (minority of EEA nationals that have registered for ‘settled status’ / those non-EEA nationals with BRP’s) with the ability to share an ‘access code’ for employers to check on-line their Right to Work status.
However, it is critical to follow all other aspects of the ‘statutory excuse process’ in storing the necessary documents and evidence/audit trail.
Update 28 Jan 2019: The legislation has changed such that a ‘short-form’ birth or adoption certificate, together with an official document confirming a candidate’s National Insurance number, is now an acceptable Right to Work document; i.e. it is no longer a requirement for the birth or adoption certificate to be a ‘long-form’ birth or adoption certificate that includes the candidate’s parent(s) name(s).
Also, the Government has announced an online Right to Work check service. However, this an optional service only relevant to limited categories of individuals. If the service is used there are still important steps that must be followed to ensure compliance and a statutory excuse. Read more here.
Who can use the Government online Right to Work Check? The service is limited to individuals with a biometric residence permit or a new EU settled status (which is for EU nationals living in the UK after BREXIT).
8. The Value of Going Digital
The opportunity to transform and digitise HR operations are well documented, nicely summarised by Gartner:
"Strong economic times and an unrelenting wave of new digital technologies are challenging HR executives like never before. Competition for talent is fierce, employee expectations are at an all-time high and the HR department has often lagged behind fellow functional groups in exploiting digital. As an HR executive, you sit at the uncomfortable epicenter of these forces — but you’re also uniquely positioned to drive your enterprise out of the storm."
What does this mean for Right to Work? Aside from the myriad reasons above, there are other good reasons to consider digital:
- Improved GDPR compliance– Encrypted, cloud-based storage is much more secure than paper-based or local storage. Data deletion can also be handled automatically.
- Reduced administration – Alongside streamlining and giving consistency to the Right to Work check process, some solutions provide APIs, which can link up to your existing HR/recruitment software to share data.
- Better candidate experience – Checks can be conducted efficiently and remotely, saving time for everyone involved, and providing flexibility for recruiting outside of the head office.
The Government themselves advocate going digital in relation to Right to Work checks; to the extent that they have themselves announced access to an online check service.
This operates on a ‘share code’ basis, allowing an individual to grant access to an employer to view their status on-line. This is certainly a step in the right direction but is isolated in scope as it doesn't constitute a complete Right to Work check:
The Home Office have announced an online Right to Work Checking Service for optional use by non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme. All other individuals, including EEA nationals who have not been granted settled status under the EEA scheme, will still need to demonstrate their right to work through the appropriate documents, such as their national passport, as now.
Organisations should seek digital solutions which make it easy and intuitive for the recruiter to conduct a compliant Right to Work check, regardless of the circumstances/documentation/nationality of the candidate concerned. Ideally it should be capable of digitising the entire check workflow, end-to end.
Hopefully this guide has equipped you with the knowledge to protect your business and cleared up any confusion regarding Right to Work checking and your obligations as a business owner.
We'll keep this guide updated as and when the law changes, so you can always rely on it to keep your business current and compliant.
Is there anything about Right to Work that you would like to know more about, or that we've missed in the guide? Let us know in the comments!
Thanks for reading!
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