Right to work checks – the common pitfalls and latest developments, plus the main considerations for appointing an IDSP

If we start a conversation asking employers if they have compliant right to work checks, most will reply "absolutely". However, in this constantly evolving area, it can take just one slip up to cause significant financial and reputational damage to your business. This article looks at the benefits of appointing an identity service provider, the common pitfalls relating to right to work checks, the upcoming developments in early 2024 and what employers should do to minimise the risk of illegal working.

What is meant by obtaining a statutory excuse to a civil penalty?

If employers conduct compliant right to work checks and follow the specific actions within the relevant right to work guidance, they will establish or retain a statutory excuse against a civil penalty. A statutory excuse is an employer's defence against a civil penalty and the civil penalty, is the associated fine. Further details on the financial value of a civil penalty can be found later in this article. By performing the correct checks and keeping records of the checks made, employers will protect themselves from receiving a civil penalty should it turn out they have inadvertently employed someone who is working in the UK unlawfully.

To recap, what options are there for compliant right to work checks?

Currently, there are three types of right to work checks:

1. Manual – which means obtaining original acceptable documents in accordance with the latest Right to Work guidance, copying that document, checking it is genuine and keeping appropriate records of that document.

2. Online – which means an employer obtaining a share code and their date of birth from the prospective candidate and entering this into the Government's online right to work check service. The employer checks the online profile page generated in the presence of the candidate (either in person or via video link) and retains appropriate documentation.

3. Using an Identity Service Provider (IDSP) – who will work in partnership with the employer to carry out digital right to work checks, relating to British and Irish citizens, who hold a valid passport.

Who are IDSPs?

An IDSP is essentially an approved provider of ID verification services. They conduct the remote process of obtaining evidence of a British or Irish nationals' identity, checking that it is valid and belongs to the person who is claiming it. If this process is used correctly, the employer will have a continuous statutory excuse to a civil penalty.

At the time of writing, the Government have certified 47 IDSPs as approved providers for right to work checks. The latest list of approved providers can be found here. Though it is not mandatory for employers to use a certified IDSP for their right to work checks, the Home Office recommends a certified IDSP is used. It is important to flag that some IDSP's also offer additional services such as right to rent checks and Disclosure and Barring Service (DBS) checks.

What are the main benefits of engaging an IDSP?

There are two main benefits. The first is that employers who engage an IDSP are helping to tackle fraud within the immigration system. An IDSP, who has been certified by the Government, has been rigorously checked and their validation software approved, to help fight fraud in this area. By way of example, a prospective employee presenting a fraudulent original, British passport to a recruitment manager may go undetected, despite visual checks. Whereas, that same passport provided to an IDSP and checked using validation software, should be rejected.

The second is that using an IDSP accelerates the recruitment and onboarding process for employers. In our post-pandemic world, where hybrid working has become commonplace, the ability for a prospective employee to not to have to travel to provide their original right to work documentation hugely assists both parties. For example, the certified provider Trust ID can validate and verify employee's documents within seconds, if straightforward.

What do employers need to consider when appointing an IDSP?

• Ensure that the services you require for onboarding candidates are available i.e. right to work checks, right to rent check, DBS checks or a mixture.
• Enquire about their pricing – e.g. whether its upfront costs, based on volume.  
• Whether the user experience is easy for candidates.
• Have clear expectations on whether you want a separate (app based) service and/or an integrated (cloud based) right to work checking system.
• What support the provider offers if there any technical issues or questions.

Why should employers choose Trust ID as an IDSP over other certified providers?

Trust ID offer the full package of onboarding services including right to work checks covering all types, right to rent and DBS checks. They assert that they are the only certified IDSP that has a UK based analyst team that will be available if things go wrong, such as if facial biometrics don't match, you won't receive a computer says no answer. A member of their analyst support team would manually inspect the issue and contact you to offer solutions. In addition, their service support is available from 8am – midnight, 7 days a week. Therefore, if your business needs to employ candidates over the weekend, you can rest assured that you will receive a response and be offered timely solutions to any problem.

Are there any misinterpretations around the IDSP route?

Yes. The first is that the employer retains ultimate responsibility for the right to work check, not the IDSP. Whilst employers can outsource the functionality of the right to work check, they cannot outsource the responsibility, as verification of the IDSP report by the employer will remain essential.

Secondly, it is important to flag that an employer can engage an IDSP to perform both manual and online right to work checks on all prospective candidates. There have been vast amounts of confusion on whether an employer will establish a statutory excuse in these circumstances. The current Right to Work guidance is clear that where an IDSP is engaged outside of British and Irish nationals, an employer will not establish a statutory excuse to a civil penalty. However, in practical terms, employers should never be faced with a civil penalty if they have used the services of an IDSP, because fraud prevention is their main objective. 

What are the common pitfalls associated with general right to work checks?

In our experience, employers are generally good at completing compliant right to work checks at the outset of the employment relationship, however, their systems and processes often aren't as clear when it comes to follow-up right to work checks.

It's not enough that an employer diarises the exact expiry date of an employee's right to work in the UK. This is what leads to urgent and stressful situations, where mistakes can be made. Employers should also be diarising reminders perhaps 6 weeks, 3 weeks and 1 week before the employee's visa expiry date, to prevent the panic. This time can be used wisely to discuss the employee's plans to remain in the UK. It is then vital that the employer takes action. It is very common for employers to not see through the follow up right to work process which involves understanding when the 28 'grace period' is triggered and when to verify an employee's right to work status with the Employer Checking Service. Our recommendation is that employers not only review their follow up right to work processes and systems but ensure that the staff responsible in this area have the appropriate knowledge and training to minimise risk for the employer.

Why is it important that employers complete compliant right to work checks?

If they do – they can rely on their statutory excuse, and they will not receive a civil penalty.

If they don't - the consequences are severe. The current civil penalty for each illegal worker found is up to £20,000. However, from 22 January 2024, the  Home Office  is due to increase  the maximum civil penalty to £60,000 per illegal worker where there have been repeated breaches (which is tripling the fine). For a first breach, the maximum penalty will be £45,000 per illegal worker (if no previous breaches in the last three years). In addition to the financial burden, there are other significant consequences of getting this wrong such as reputational damage (as employers who have been employing illegal workers are named and shamed each quarter), criminal implications which range from an unlimited fine to director imprisonment of up to 5 years (if committed knowingly) and, in some cases, employer's details can be shared with other government enforcement agencies along with the temporary shutdown of workplace sites. If the employer also has a sponsorship licence, the Home Office could downgrade, or even revoke the licence, putting future recruitment strategies and existing sponsored migrants in jeopardy.

What action should employers take to minimise the risk of illegal working?

Employers should be looking to protect themselves as far as possible moving into 2024. This includes:

• reviewing their existing right to work systems and follow up processes and making any necessary revisions;
• making sure that those staff with this responsibility have had appropriate training and retain adequate knowledge; and
• if it would help the business to have more support, investigate appointing a certified IDSP, whilst recognising that this is a partnership, and the employer will retain ultimately responsibility.

To learn more about this topic listen to the latest episode of our podcast series, People Talk.