What next after 1st October?

On the first of October, a big change hits the UK employment scene as this is the day that you are no longer allowed to do your Right to Work (RTW) checks remotely.

For the last few years, employers have been allowed to accept electronic copies of documents and to carry out a video check to make sure that the person they are employing matches the person on the passport or driving licence.

The change was brought in initially to cope with the effects of COVID and was a natural reaction to the need to make sure that people could be properly employed but without increasing risk.

Late last year, the government announced an extension to the timeline for the switching off of this rule and the end date is 30th September 2022.

For many employers this is fine. They will simply go back to what they were doing three years ago and continue with paper-based evidencing.

But for other employers who have evolved during COVID to a more connected and less 19th-century way of doing things, this could cause problems.

What is right to work?

In the UK every employer is legally required to ensure that the people who work for them have the right to work in the UK, both at the point that they are engaged and on an ongoing basis.

Note that the assumption from the UK government is that the employer has got it wrong and so there is this extraordinary concept of establishing a “Statutory excuse”.

Essentially this means that if you are investigated for illegal working then the onus is upon you to prove that you have done everything correctly otherwise your company could face penalties.

There are three ways to carry out RTW checks;

  1. a manual right-to-work check
  2. a right to work check using IDVT via the services of an IDSP
  3. a Home Office online right-to-work check

How do you establish a statutory excuse?

The legislation in this area is all around understanding who you are employing and whether or not they have the right to work in the UK.

For UK passport holders that is a relatively simple matter if they have a current UK passport as this is viewed as strong evidence.

You have to prove that you have checked that the document is genuine and you must make sure that it is current.

Employers must retain evidence that they have carried out the checks otherwise they won’t have a statutory excuse.

Importantly, you must make sure that the document relates to the person you are employing and that this person is the individual who actually turns up for work.

Be aware though that you as the employer are on the hook for this, so if you let your recruitment company or an outsourced HR provider do your background checks then you will still be liable for any penalties and not the company that does the checks for you.

For non-UK citizens, the picture is a little more mixed and largely relates to how long they have been in the country, how long you have employed them and what their visa status is.

The simplest way to check this is by using the Home Office Right to Work check. This requires the candidate to go onto the Home Office page here and obtain a share code.

They then pass this to you and you go to the Home Office employers page and use that to check their right to work.

Again, remember to save evidence that you have successfully carried out the checks.

Note that things are always changing in this area and you do need to keep up to date on the latest changes. You can find the up-to-date employer’s guide here.

What changes from October 2022?

From the 1st of October, employers can choose to use an IDentity Service Provider (IDSP).

This is a company that can provide a digital identity verification service (IDVT) that includes checking the validity of any documentation and that they relate to the person presenting them.

The benefit of this is that it is completely digital and very quick. More importantly, carrying out an IDVT with a registered IDSP automatically gives you a statutory excuse as long as you keep the evidence.

In practice, IDSPs can be cheap to use and actually take a lot of the stress away from doing the checks.

Carrying out manual checks always leaves the possibility that you could forget something or miss a forged document.

Bear in mind that you don’t HAVE to use an IDSP. You can continue to do manual checks if you want but truthfully it doesn’t make much sense.

One caveat is that the IDVT service only works for UK citizens and Irish citizens with a passport card although it is to be hoped that this will be rolled out to other nationalities later on.

A report from an IDSP should include all of the information in one document that will provide you with a statutory excuse and ensure you are employing who you think you are.

A quick word about GDPR and data privacy

When you go through a RTW check you will be collecting, processing and storing a lot of personal information so you do need to make sure you are doing this in a compliant manner.

A breach of data privacy regarding passports, driving licences and address proofs doesn’t bear thinking about.

The good news here is that an IDSP like Checkback will collect data in a totally compliant manner.

You’ll need to keep any documentation for two years but you can do this by keeping the IDVT report in electronic format in a secure location.

How to get a digital Right to Work check

It isn’t practical for any but the biggest employers to become an IDSP in their own right so you need to find a company that can help.

We have developed the perfect system for carrying our RTW checks whether you are employing 1 person a year or 10,000.

Check out our RTW offer here or contact us now and let us talk you through how we can help.


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