Keeping track of exactly what’s needed when it comes to right to work checks has started to feel more complex than ever thanks to Brexit and the pandemic. So what’s the latest on the procedures an employer must follow before taking on a new employee to avoid illegal employment penalties?
Employers have been required to properly verify a prospective employee’s legal status with regards to working in the UK for several years now. But this has now been extended to take our departure from the EU into account. EU, EEA and Swiss citizens have had a six-month grace period that started at the end of the Brexit transition period until 30th June 2021. During that time, they had to apply through the EU Settlement Scheme in order to continue living and working in the UK. Within that grace period, new workers from those areas were still able to use the documentation of an EU, EEA or Swiss passport as confirmation that they had the right to work. That has changed from the 1st July and EU, EAA and Swiss employees must also now follow the procedure outlined below.
The procedure for right to work checks
There are a couple of ways to carry out right to work checks for potential new employees.
To check online, employers must now obtain a share code and date of birth from the employee. That information can then be used to check the details of their right to work.
If they don’t have the share code then employers can ask to see their original documentation and carry out the three-step check to ensure they will not be making an illegal employment offer. An employer is expected to do all they can to verify that the person presenting their documents is genuine, that they are the person to whom the job has been offered, that they are allowed to do the type of work being offered, and that they are presenting their original documentation.
The three-step check
First of all, this involves obtaining the potential employee’s relevant original documentation. Secondly, employers must check this documentation against a detailed checklist while the potential employee is present. (“Present” can mean either physically present or present online while the checks are being carried out. Either way, however, the employer must be in possession of the original documents – although there is a temporary caveat to this thanks to the pandemic as outlined below). The checking process includes taking steps like making sure photographs and dates of birth are consistent across documentation, and doing visual checks to ensure the photographs are of the person presenting them.
The third step is to then make clear and fully readable copies of every document in a way that cannot be altered and securely record the date when the checks were carried out. The copies must be kept securely for the whole time the individual is employed with the company and then for a further two years afterwards. Once those two years have passed, all the copies must then be destroyed.
The recently updated government guidance contains detailed information on the three-step procedure with more in-depth explanations about what employers need to do while conducting these checks and what is considered to be acceptable documentation.
Temporary arrangements during the pandemic
The pandemic has however complicated the situation with the Home Office granting temporary permission for employers to carry out checks online from the end of March last year. They have been allowed to carry out the process on a video call and can accept scanned documents or photographs of documents for checks using email or a mobile app, rather than sending originals.
This temporary arrangement has had its deadline extended a few times – at the time of writing the current expectation is that in-person physical checks of the original documents will resume from the 1st of September. As we all know by now, nothing is written in stone – so keep an eye on this page on the GOV.UK website for any changes.
What happens if you don’t comply?
So what are the penalties if you are found to be employing someone illegally?
If there are any cases of illegal employment at your company, you may receive a referral notice to let you know that your case is being considered. Following that, you may get a civil penalty. The penalties are calculated on a sliding scale, and they aim to reflect the level of non-compliant behaviour. The calculation will consider the level of liability by first of all establishing if the employer has a statutory excuse. If they do not, the level of breach will be determined taking into account whether the employer has breached the scheme within the past three years. This then determines which level of penalty table applies and the final penalty is calculated using the Civil Penalty Calculator. The Level 1 table starting point for the calculation of the civil penalty is £15,000 before reductions are applied and the Level 2 table starting point is £20,000.
If a civil penalty is issued, you will be given a “civil penalty notice” with 28 days to reply. The notice will provide you with details on the civil penalty including payment options as well as information on the appeals procedure. It could be bad news from a reputation viewpoint as your company’s details might be published by Immigration Enforcement as part of their work highlighting the consequences of illegal employment. You should also note that in the most serious cases, criminal sanctions could apply, with the potential for a jail sentence. You’ll find more information here in the latest code of practice.
What if you have a specific query relating to illegal employment?
Employers must make sure they are complying with procedures to ensure they do not find themselves in a situation where they are employing someone illegally. While there will be variations in individual circumstances, there’s extensive guidance provided on the GOV.UK website to help with identifying the specific steps that need to be taken. There are also a number of ways to obtain advice if you are unable to find what you are looking for, including contacting the Employer Enquiry helpline on 0300 790 6268.
If you would like to learn more about how our HR software can provide you with a central secure way to store all information relating to right to work documentation, then please don’t hesitate to give us a call on 01442 285460 or send us a message via our contact form.