UK Right to Work Checks are changing

There’s been a lot of uncertainty about digitising Right to Work checks, we set out what is happening, when, and what UK employers need to consider now.

In its raw form Right to Work is a simple concept. However, the penalties for getting it wrong are significant, which represents a huge risk not only for the HR function but the business as a whole.

Every employer, no matter how big or small needs to check that every individual they employ has the right to work in the UK. This must be carried out before that person starts their employment, and failure to do so could result in fines of up to £20,000 per employee and potential reputational damage if that person is found to be an illegal worker.

It sounds simple, but with 200+ document combinations and ever-changing legislation, it’s never been easier to get it wrong – and the rules are changing again.

The Home Office launched its online Right to Work Checking Service in April 2018. This allows employers to conduct online right-to-work checks on eligible individuals (in summary, individuals with EU, EEA, or Swiss immigration status who can provide a valid share code).

However, all other right-to-work checks – including for UK and Irish nationals who represent the vast majority of individuals seeking employment in the UK – had to be carried out in person.

When the COVID-19 Pandemic made it impossible to meet face to face, employers couldn’t carry out Right to Work checks in person. To overcome this and enable employers to keep hiring, the Government introduced a temporary easement, allowing employers to capture an ‘adjusted COVID-19’ check, remotely, using video chat.

Whilst this was successful, it increased the potential for fraudulent documents to be used.

Therefore, to mitigate this risk but retain the benefits of a digital solution, from 1 October 2022 employers will need to complete their Right to Work checks in person or put in place appropriate alternative processes and systems with an IDSP.

In summary, an IDSP is a certified identification document validation technology service provider who carries out digital identity checks in respect of individuals who are not in scope to use the Home Office online services, on behalf of the employer.

The verification process provided by an IDSP will validate the identity of the applicant and their documents remotely. Initially, the verification process will only cover British and Irish citizens, covering the vast majority of Right to Work checks.

At the end of May 2022, the UK Accreditation Service published a list of six certification bodies who can certify businesses to provide IDSP services. Certification is expected to take 8-12 weeks, meaning that currently very few IDSPs have completed the certification process, or are likely to have completed it by 1 October.

It is expected that lists of certified IDSPs will be published on the Government’s website and on their specific certification body’s website. IDSPs will of course also be able to provide evidence of their certification.

For employers that work with an IDSP, they will be able to complete their Right to Work checks for applicants with a valid UK or Irish passport remotely. For applicants who are non-UK and Irish Citizens who are able to use the Home Office’s Online Right to Work Checking tool, employers will continue to be able to complete their checks on a video call.

There will be a small number of cases where an employer must check an employee’s Right to Work in person.

According to Home Office Guidance ‘Employers must not treat less favourably those who do not hold a valid passport, or do not wish to prove their identity using an IDSP. You must provide individuals with other ways to prove their right to work and should carry out a manual document-based right to work check in these circumstances.'

The key point that employers need to make note of is: if they want to continue to carry out Right to Work checks remotely then they should secure the services of an IDSP. Otherwise, they will need to revert to completing all their checks in-person.

Employers will also need to ensure that all checks are maintained and remain valid.

It is not mandatory for employers to use a certified IDSP, however, they will need to be satisfied that their chosen solution provider is capable of providing the required checks.

At the time of publishing this article, there are approximately two months before the changes in legislation come into law. This means that employers have approximately one month to find an IDSP and approximately one month to implement their technology and processes to ensure the required checks are being completed. Alternatively, they must revert to completing their Right to Work checks in person.

KPMG is currently in the process of becoming a certified IDSP for Right to Work Checks.

Before the new changes were announced, through the use of a bespoke custom-built App, KPMG has been providing technology to support its clients to manage their Right to Work obligations for over 5 years and can help you manage this change.

KPMG’s App enables employers to ensure the required checks are being completed and comply with the latest UK, EU and EEA legislation.