Episode 3, Mobile Workforces: Right to work checks

Ruth Buchanan:

Hello, and welcome to the third episode in our Mobile Workforce's mini-series. My name is Ruth Buchanan, and I'm an employment law partner. And today, I'm joined by Liz Parkin, a senior associate in our London office, specialising in employment in business immigration.

Our miniseries will explore the ever changing immigration rules that underpin mobility issues, and provide insights into the latest issues impacting our clients. We'll be covering the life cycle of the employment relationship, and recruitment and onboarding issues through to managing a mobile workforce, and what happens when the relationship comes to an end. In this episode, our focus is on right to work checks, and how the new approach to electronic statuses and checks work in practice.

You are listening to Asher's Legal Outlook. For many employers, onboarding employees focuses on interviews, reference checks, and getting a contract signed. The right to work check may seem like a formality. However, there are a number of reasons why businesses should be ensuring their processes are compliant, and these include the potential for being a fined 20,000 pounds. Liz, the home office is now pushing for more streamlined and accessible methods for carrying out these checks. Have the latest set of changes, which I think came into force in April, made things easier for businesses?

Liz Parkin:

In short, probably not, actually. We've got two main processes now with a third option that's available for British and Irish passport holders. But the process is quite fragmented as not everyone is going to have an electronic status these days, but there is this push for these electronic statuses to be used going forward, but what it means is that we don't have sort of one process, and it's got quite a lot more complicated.

Ruth Buchanan:

And so how do the options work?

Liz Parkin:

So, the way an employer needs to check right to work for an employee is going to depend actually on the type of evidence that they've got and then their nationality. So, the route that employers will already familiar with is a manual check, and that involves checking someone's physical documents using the home office list, which is a specified list of acceptable evidence, and this is commonly used for British or UK nationals.

So that would be things like passport or a birth certificate plus evidence of national insurance number like a P45. And for these individuals, it's reasonably straightforward. You know what the documents are supposed to look like. And for British and UK nationals, you can actually even accept an expired passport. Other examples of manual checks are foreign nationals. If they don't actually have an electronic status, biometric residence documentation, that kind of thing. So, we've got sort of this reasonably straightforward process that most employers will be familiar with for their sort of standard British UK nationals.

Ruth Buchanan:

And what steps does the business actually need to take when they're carrying out a manual check?

Liz Parkin:

So, I mentioned there's this list of approved evidence. So, the home office has actually got a checklist, which, believe it or not, is actually quite helpful, and it summarizes that there are sort of three steps to this manual checking process. That's obtaining a copy of an original document based on that list of acceptable documents. You can't accept photocopies or certified copies from solicitors. It does have to be the original document. You then carry out the check, which is the second step to this. And the home officer is sort of trying to make sure that employers are at least looking at these documents, ensuring that the photograph of the person on that document matches the person that's turning up for work, and things like dates of birth and other core information matches things like CVs, references, and other information you've been given.

They don't expect you to be a forensic expert, for example, but the home office does expect you to be able to find inconsistencies, differences in dates of birth, significant changes in names, or if the document actually itself doesn't look quite right and looks like it's been tampered with. I've seen them before, where it's clearly sort of been tippexed or something. And the most common one, actually, that catches people out are changes of names. So, someone who maybe has changed their name through Depol or has been married or divorced. It's not just their passport you then need. You need that additional piece of documentation to evidence that name change.

The other element of checking is actually then checking what that document says. Is there an expiry date for their right to work, for example? So, for a British national, that's not going to be applicable. You've just got a passport. They don't have a limited right to be here, but for some other individuals, for example, someone with maybe a temporary right to be here, there should be an expiry date on there, and there might be restrictions on their documents as well in terms of types of work they can do, or hours, that kind of thing, and the third limb to the manual checks is actually then retaining a copy.

And again, this is one of the ones that clients often maybe haven't quite done right. So, it could be a hard copy or an electronic scan, for example, but you have to be able to evidence to the home office. It's not only have you checked the original document, but the date on which you've actually undertaken that check, and you need to retain evidence of that process. If you're unable to provide that information, then as far as the home office is concerned, you didn't do the check, and you have to keep that evidence of the right to work check for two years after the employees left.

Ruth Buchanan:

What's the other main way of checking them?

Liz Parkin:

So, this rather new and streamlined online home office checking process. Now, we've had this a little bit since the introduction of the EU status for pre-settled and settled individuals. They get an online status. It's not a physical document in most instances, but what the home office has done now is they've taken this online checking process one step further. So, for individuals, who have got what we call a "biometric residence permit," or a residence card, or a frontier worker permit, or some other kind of basically visa status, most of these now will be verified via this home office online checking service, and this is because the home office is moving away from issuing physical documents, and they are pushing towards sort e-statuses being the most common way of checking, and it's, in theory, a very quick and simple process, but it's the fact that, at the moment, we've got these various different statuses with some people not necessarily realizing that they've got a physical biometric residence document that they might turn up to the employer with, but actually, the employer can't look at that now as evidence.

They've got to go on and actually do this online checking process. You can't accept a physical document where somebody actually falls into this new category. It has to be this online check.

Ruth Buchanan:

But how does the actual online check work?

Liz Parkin:

So, it's free to use, which is always good news, and the service works by allowing the individual themselves, the applicant... They go online. They generate a share code, and the employer uses that share code to then check that on my service. So, the cool point here is it's the employee has to give the employer this nine character share code, and it has to start with the letter W and that indicates that the share code has been generated for the purposes of a right to work check. Foreign nationals basically can use this service as well for proving when they're renting, for example, but those have different codes at the beginning.

So, what you're looking for is a nine character long code that starts with a W, and that share code that the employee should be able to give you is valid for 90 days, so they could use it for multiple employers, in theory. The thing with this is this isn't a magic process. You can't just sort of download the online check and you're done. The employer still actually needs to check that photograph that's generated on the online system matches the person that's turning up for work, and again, you need to retain evidence that you've done this online check, so a PDF screenshot of printout, and also you need to check expiry dates, check any restrictions again, same as a manual check. It's just your checking an electronic status and essentially making sure that those details that are coming up match things like the CVs again that you may have been given.

Ruth Buchanan:

And as you mentioned, there was a third option, which is only for British or Irish passport holders. What's this other option?

Liz Parkin:

This, in theory, sounds like a great idea, but when we dig down a bit more, I'll leave it to you to see if you agree, but the employers can use what we call an identity service provider. So, this is the third party provider, who in turn use identity validation technology. And again, this is the push for this sort of electronic status checking to be sort of the main method. At the moment, this use of these IDSPs, identity service providers, is only available for, as you say, British and Irish passport holders with a current passport, and the individual actually needs to consent to this process. So, you can't insist on this identity service provider check being carried out. The employee has the right, essentially, still to use their passport in this instance. This is the only example, at the moment, of where an employer can actually outsource that right to work check to another party.

In all other instances, the employer is the one that needs to do all of that checking that we've been discussing. The other thing is this route actually incurs a fee. So, it's up that third party provider to identify what fee they want to charge. Some might wrap it into general background checks. And in addition, the employer actually needs to be completely satisfied that that third party is meeting a number of sort service provisions that the home office sets out, so specific processes that they have to have in place. So, at the moment, it's quite a burdensome process. It may, as people get used to this, become a more useful option, and the other core thing here is, while although this third party is essentially doing the initial check for you, the employer still needs to verify the information that comes through to them, so again, that the photo and the information matches the applicant.

And again, you need to retain a clear copy of that third party check in order to have evidence that you've actually done the check in the first place.

Ruth Buchanan:

And do employers need to check all of their work for us, or is this just checking people with visas?

Liz Parkin:

So, we often get this question actually. And I suppose this point is, logically, people think, "Well, British nationals, low risk, we don't really need to keep that evidence." I think the key here is that you can't make assumptions based on, for example, someone's name or the way that they look as to what nationality that they are. And all of the guidance from the home office says that you should be checking all of your workforce, and that is on two bases, number one, so that you're not presuming something and you've actually got evidence that you've checked, which is your practice, but also to avoid discrimination claims, because you don't want to just be checking "the people that maybe don't look like they're British."

It's not a great approach to be having, and it opens the business up to potential discrimination claims.

Ruth Buchanan:

Thanks, Liz. But how did all this work during COVID, given that employers wouldn't be able to check in person and it also wouldn't be possible to see original documents?

Liz Parkin:

So, this is probably one of the drivers for this push towards e-checking actually, but the home office, on the manual checks, have made a temporary sort of adjustment to the checks needed. It was obviously very difficult for employees to physically verify an original passport, for example, in person, and people aren't generally willing to put those kind of things in the posts these days. So, what the home office have done is they've introduced a temporary adjustment whereby essentially the applicant holds their document up to the screen on, say, a Zoom call or something.

And then they send a copy of that to the employer, and they verify it that way, and that temporary change has been in place for a while now and is due to come to an end. This temporary checking process is coming to an end on or around the 30th of September. So, we'll be back to sort of the normal rules later this year, which is physical checks in person for those manual checks that we were talking about.

Ruth Buchanan:

And so should employers then be rechecking staff when they're back in the office in person?

Liz Parkin:

So, hopefully, actually, no. The home office has said, "It's fine. There's no requirement to recheck where you've carried out that adjusted right to work check process with a person just holding up their copy, which is great to know." And the only situation where you should be carrying out any sort of further checks on your existing staff is actually where they've got that time limited right to work, that sort of expiry date on their right to work.

And that applies to all staff, regardless of whether that's a manual check or one of these e-checks. There will be a requirement when you get to the expiry dates on their documents to be able to carry out that additional check. And again, you need to keep a record of those follow up checks, and reaching out to people well in advance of those expiry dates is really key.

Ruth Buchanan:

And is that then the same process as with the original checks, or is it different when you recheck?

Liz Parkin:

Again, it's the same process. It's that same checklist against the same set of evidence. So, if you've done an electronic status, it's probably an e-check. If it's a manual check, you're probably doing another manual check. Hopefully, for an existing employee, there's actually a 28 day grace period for that rechecking process to sort of have it happen. It means that if an employee can provide sufficient evidence that they've put in a new application, and that new application for their new visa status, for example, was made prior to their existing right coming to an end, or for example, that they're in the middle of an appeal, then the employer can actually continue to employ that person during this 28 day grace period.

And hopefully, that individual will get a decision in that extended 28 day grace period, but if they don't, then there is another type of online verification check that the employer can do. It's called the Employer Checking Service, and it's different to that right to work check. It's a slightly different system, but that specifically will show an employer if someone has got, essentially, a pending application or appeal, and give them a status update on that.

Ruth Buchanan:

So, how does that employer checking service work then?

Liz Parkin:

So, the ECS, that employer checking service allows the employer to run, as I said, the different type of online check, and provided that you get a positive result back from that, there's then a six month period where you can carry on employing that person, pending that decision coming through. And if, at the end of that six months, there's still no decision on their application, in most instances, you'd be able to get a decision within six months, but some applications like settlement can take a bit longer, and if that was the case, you get to the end of that six month period, end of that ECS check, and still no application, then you run another ECS check, and you can keep doing that, essentially, for an applicant, who has got a pending application or a pending appeal to continue to give you evidence that they've got the right to work.

And it can also be used, this ECS check, for an applicant, so someone who isn't already employed, who comes to you and says, "I don't have my passport. I don't have a biometric residence document, because I've got an application pending," and they'll be able to give the employer sufficient information for that employer to go off and do this ECS check prior to employment beginning.
And again, that gives the employer comfort, because a positive result will mean that you can employ that person.

Ruth Buchanan:

What happens, though, if the check comes back negative?

Liz Parkin:

It does happen. We would always recommend that actually the employer, in the first instance, discusses it with the employee, or the applicant. Don't presume that the checks come back negative that they don't have the right to work. It's an indication, but there are a number of reasons that there might have been a negative check. It could be that someone has run the check too early, and the application, or the appeal that they've made, just hasn't registered on the back office, home office systems. There might be a perfectly good explanation for it, and that dialogue is really key. And before terminating employment, you really want to fully check whether there is actually genuinely maybe an underlying right, and that ECS check maybe isn't quite accurate.

Ultimately, if there is a negative check and the employee doesn't have an explanation, then if the employer carries on employing somebody with a negative check, you won't have a defence against being penalized by the home office, being fined, if that individual actually turns out to be an illegal worker, if they don't have an ongoing right to work. So, I'm not saying, "Ignore the negative result," but you should definitely look into it in more detail before you sort of make any snap decision about terminating someone, for example.

Ruth Buchanan:

And I guess, getting to the crunch point, what are the actual penalties, if you, as an employer, don't actually carry out the rate, or the rate share.

Liz Parkin:

So, there are fundamentally two elements to this, carrying out the check, obtaining the right evidence, and if the employer can't evidence that they've carried out a compliant check, so they can't have checked to not have the evidence... You need both of these things... And if you can't evidence that, then you've got a civil liability, and the fines start at 20,000 pounds per illegal worker. You get sort of an amount knocked off for a first time offense, and if you self-report as well, a breach, you could get an amount knocked off. It's not necessarily something that we recommend. And in really serious cases, there is criminal liability, five years imprisonment and an unlimited fine.

And that's for an employer who knew, or had reasonable cause to believe that the person that they've employed is an illegal worker. So, the people that sort of turn of blind eye to these right to work checks, really don't care, are likely to be prosecuted from a criminal perspective. The really important thing here is that having a civil penalty, having that fine on your record, can actually have a wider impact. Yes, it's a monetary fine, but also it might impact your sponsor license. If the business has a sponsor license, so maybe for bringing skilled workers in, the home office can revoke that or downgrade the license, which obviously is not great. And if the business doesn't already have a sponsor license, then you're not eligible to actually apply within 12 months of having paid a civil penalty off.

And if you've had two or more, then it can be up to five years before the home office will actually grant you a sponsor license.

Ruth Buchanan:

Wow. So, businesses really need to keep in mind that there could be quite significant long-term impacts of not doing these checks in the right way, so not only do they need to keep up to date with any changes in the types of evidence that might be acceptable, but also kind how those checks need to be carried out?

Liz Parkin:

And ensuring that, in the business, that people who are responsible for onboarding for doing these checks are aware of what they need to do, aware of what evidence needs to be retained in order to protect the business against these penalties actually being issued.

Ruth Buchanan:

Great. Thanks, Liz. That was another really, really useful, really practical session.

Liz Parkin:

Great. Thanks, Ruth.

Ruth Buchanan:

Thank you for listening. If any listeners want to get in contact with Liz or myself, then our details are on the Ashurst website, Ashurst.com. We have some more exciting podcasts on the way, including looking at the Business Visitor Brief, the new global mobility option, and issues around terminating workplace.
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