With a number of changes related to ‘Right to Work’ processes looming, we take a look at what’s changing and what’s required of you as an employer in order to remain legally compliant.
Due to Brexit transition periods and the pandemic, these changes have been phased in over a longer period than originally intended. As of 1 July 2021, though, they come into force in full.
Firstly, employers need to ensure that a right to work check is conducted for every new recruit or current employee to establish whether they are legally allowed to work in the UK. This will not be new information to anyone and it is also widely known that there are heavy penalties of up to £20,000 per illegal employee if employers get this wrong or fail to even complete checks.
So how do we ensure that a legally compliant right to work check has been conducted? Well, for UK nationals, it is relatively straightforward to check the documentation. Employers must perform a robust inspection of an original official document, such as a passport, taking care to check that photos and dates of birth tally etc., take a good quality copy and keep records.
The pandemic has made this more challenging than normal, notably in the form of a relative lack of face-to-face contact, but thankfully the Home Office have provided temporary solutions to these issues. From 30 March 2020 until 31 August 2021, the Government’s “work from home, if you can” guidance means it is permissible for employers to check the right to work documentation of job applicants and existing workers using scanned documents via email or a mobile app rather than having to obtain originals, which has previously been the only way of correctly completing such checks.
These temporary adjustments have facilitated remote checks and enabled organisations to check an individual’s right to work online, whilst limiting any risk to health caused by COVID-19.
Despite this “relaxation” of the right to work checking procedure, it remains an offence where the employer has reasonable cause to believe that they are employing someone who does not have the right to work in the UK, although retrospective audits will not be carried out in respect of checks that were completed between 30 March 2020 and 31 August 2021.
From 1 September 2021, as was the case prior to the pandemic, the employer must be in physical possession of the original documents and can no longer accept a scan or a photo of original documents. The document check must be carried out in the presence of the holder, and this must be done face-to-face.
We have covered how we check the documentation of a UK national, but what is the process for a foreign national? Well, a combination of some, or all, of the following schemes come into play to determine their immigration status and therefore what checks are required:
- The EU Settlement Scheme
- The points-based immigration system
- Employer sponsorship
EU Settlement scheme
This scheme provides EU citizens and their families who are currently living and working in the UK with the opportunity to apply to the Home Office to be allowed to continue doing so after the UK’s withdrawal from the EU. The absolute deadline for applications under this scheme is 30 June 2021 and they are conditional upon applicants having been UK residents on 31 December 2020.
To be eligible for settled status, applicants will usually need to have lived in the UK for at least 6 months in any 12-month period for 5 years in a row, and they will need to provide proof of this when applying. A National Insurance number can be given to allow an automated check to be performed based on tax records. If the check is successful, no further proof is required.
The applicant, if successful, will be able to remain in the UK, either with settled or pre-settled status (if pre-settled, a further application is required in 5 years’ time). If the application is refused, the applicant still has the option of re-applying and can do so as many times as they wish. When an application is submitted, a share code is provided and this can be used by the individual, or by an employer, to check the status online at any time, including during application stage, and also once the status has been confirmed.
Whilst there is no obligation on employers to advise individuals of this scheme, it would be prudent to do so in order to ensure that the EU workers they employ have the correct right to work documentation due to the significant fines or even custodial sentences which can be imposed where this is not the case and to reduce the risk of significant staff shortages where they don’t.
Points-based immigration system
Every foreign national who does not have settled or pre-settled status, whether EU or otherwise, must now obtain their right to work via the new points-based immigration system. This sees points awarded for characteristics like education level, fluency of English and salary. A threshold of 70 points must be reached to qualify for a right to work.
There are several fast-track schemes that run alongside this, including for students, graduates, skilled workers, seasonal workers and specialist occupations.
If an employer wishes to employ foreign nationals who do not have the requisite settled / pre-settled status, they will be required to go through a sponsorship process to obtain a licence. The process of obtaining a licence is relatively complex, and also incurs a cost of £536 per employee for smaller companies (e.g. those with 50 employees or less and an annual turnover of £10.2 million or less) and £1,476 for larger companies. The process can take several weeks and can be complex in terms of administration, so expert advice may be needed.
When a licence is in place, applicants or employees who have been required to actively gain a satisfactory immigration status through the points system or settlement scheme may be able to provide employers with a share code which enables the right to work check to be completed electronically via the Home Office. If an employee or applicant is unable to provide this, which may be the case, employers will still be able to conduct the same robust physical checks of documents that we described earlier for UK and Irish nationals.
Ensuring that employers are legally compliant when it comes to right to work checks has always been challenging, never more so than now, with these additional changes and considerations to take into account. If you are unsure as to whether your business is complying with the various steps, contact a consultant at EML who will be able to provide expert guidance.