Right to work checks from 1st October
On 30th September 2022 the ‘adjusted right to work checks’ regime introduced during the pandemic to allow remote checking of right to work documents, will come to an end.
From 1st October 2022 employers will need to make physical checks of right to work documents, and should keep copies of the checks made in order to make out their due diligence defence.
This article is correct as at September 2022, the guidance below is subject to updates and should not be relied upon beyond that date – always seek advice from myHRdept.
What is a due diligence defence?
This is the information employers will be able to show HMRC or other government inspectors to prove that the employer has made reasonable efforts to establish a belief that employees have a legal right to work in the UK.
What if employers can’t show due diligence?
Fines for illegal workers are high in practice, and can be as much as £20K per illegal worker.
How can I check I have the right documentation in place?
myHRdept can audit RTW and other employee information to help our clients identify and rectify any important information gaps.
How should we conduct new right to work checks?
Most employers will use a manual process to check right to work documentation – we’ll focus on that here.
On or before the first day of employment, employers should inspect a worker’s right to work documents, and should make reasonable checks that the documents are genuine – checking that the laminated section hasn’t been tampered with, that the details and photo tally with the individual to whom they relate etc.
Workers may either present a ‘List A’ or ‘List B’ document as evidence of their right to work.
List A documents provide a continuous right to work, that means that the right to work check need be conducted and recorded only once. A List A document is a current (i.e. not expired) British or Irish passport, or another passport which clearly states that the individual has an indefinite right to live in the UK, i.e. has the right of abode and is not constrained by any time limit. Importantly employers should make a good quality copy of the document and sign and date the copy, stating ‘original seen.’ This should be kept on the employee’s personnel file, and in many cases employers will upload the copy onto their HR Information System.
List B documents provide a limited right to work, and List B information must be rechecked periodically – at least annually and prior to the expiry of the old List B permission.
There are 2 groups of List B information:
List B Group 1 is a passport stating that the person may work in the UK for a period of time – any restrictions, e.g. on hours or type of work, will be stated on the passport.
List B Group 2 documents are limited to 6 months. They include a PVN (Positive Verification Notice) issued by the Home Office Employer Checking Service (ECS) which will be issued to the employer via the Home Office online service. This notice will state that the person is allowed to be in the UK and undertake the work in question. List B Group 2 also includes a Home Office document showing that the individual made an application for EU Settled Status (EUSS) prior to 30 June 2021 – this must be accompanied by a PVN. Group 2 also includes a document showing the person’s EUSS made after 30th June 2021, again it must be accompanied by a PVN from the Home Office. An Application Registration Card is also acceptable as List B Group 2, again provided a PVN is present.
How to use the Home Office Employer Checking Service (ECS) to verify List B documents
Prospective workers will provide their employers with a 9 digit share code and their date of birth – employers entering this information into the system will be able to access the employee’s right to work documents. Details and the photo should be checked and the employer should confirm that the individual has a right to do the work in question, and the date of expiry of permission.
Keeping a copy of confirmation of right to work documents
Whether List A or List B, importantly employers should make a good quality copy of the document and sign and date the copy, stating ‘original seen’ in the case of original documents. The copy should be kept on the employee’s personnel file, and in many cases employers will upload the copy onto their HR Information System.
Workers with List A documents do not have to have their documents rechecked, but it is important for employers to diarise reminders to recheck List B documents and keep a copy of each re-check. A failure to do so will remove the employer’s ‘statutory excuse’ (or in other words, their due diligence defence) and, if the worker is later found to be working illegally, their employer could be fined £20K per illegal worker.
Alternative ways of checking right to work documents
British or Irish workers may be confirmed using an Identity Service Provider (IDSP). At the time of writing IDSPs were a developing concept, and we expect to publish more details about these in due course.
Want to read more?
The .gov guide to right to work checks with full List B listings can be found by clicking here.
HR Support from myHRdept
All HR outsource packages include an element of support time, and our larger packages include one or more site visits of up to a half day in duration. This may be sufficient to conduct an HR audit of employee information held, to establish any gaps that must be fixed. Audits should be repeated periodically.