UK employers prepare for wider Right to Work checks from October

Changes to Right to Work rules are just a week away, extending mandatory checks beyond conventional employees to a much wider range of working arrangements. Until now, mandatory checks have centred on employees.  
The changes represent a significant expansion of the Right to Work regime and mean businesses using non-standard and flexible working arrangements may need to review their existing checking processes. We’ll speak to immigration expert Shara Pledger about what employers need to know.
The Home Office published revised draft guidance on 11 September, following stakeholder feedback, providing greater clarity over the scope of the new regime and how checks can be carried out. The revised guidance is designed to help employers determine which arrangements fall inside and outside the new rules. It also provides further clarification around the delegation of checks.
For employers, the priority is to understand where the new boundaries lie and make sure their processes are ready for 1 October. So, which working arrangements will now require Right to Work checks? Earlier immigration expert Shara Pledger joined me by video-link from Manchester and I put that question to her:
Shara Pledger: “Well, as we talk today, it only covers contractual employees, so nice and straightforward, but as the new scheme comes into effect from 1 October, anybody who is engaged from that date who falls into the category of employee, or on a workers' contract, individual subcontractors, or some people who are engaged through online platforms will also be caught. So the key message is that it's really an expansion of the scope of what the right to work scheme will cover, moving away just from those nice straightforward employees into some other much more complicated categories of workers.”
Joe Glavina: “How should employers decide whether someone falls within the new regime?
Shara Pledger: “The first thing employers should do is read through the Home Office materials that are available at the time. So, as we're talking today, there is a code of conduct, and there's also a draft version of the guidance for sponsors which has been updated quite recently, with a view to coming into effect on 1 October. Those documents, when taken together, are very helpful to try and assist employers in identifying where a particular individual might fall. It’s definitely worth stressing, however, there may well be some categorisations that have already occurred in relation to some of these workers that could be valuable in helping to steer the direction here, but not necessarily determinative. IR35 is a really good example of that. Most organizations will have undergone some very rigorous assessments in relation to workers as to how they do, or do not, fall within the IR35 scheme. That may be instructive in helping to identify whether somebody here is genuinely self-employed and excluded from the right to work scheme, or otherwise, but they do need to really focus on the Home Office definitions here because they do standalone from any other legislation.”
Joe Glavina: “What does the guidance clarify about delegating Right to Work checks?”
Shara Pledger: “There has always been the possibility, to a limited extent, to delegate the right to work checks that are conducted. So, under the existing scheme, and moving forward through after the first of October as well, there is this ability to engage third parties in the right to work checking process. So that's usually working with specialist companies who operate very sophisticated technology that's able to identify whether things like passports are genuine and use facial recognition technology as well. Now those permissions will remain. The Home Office guidance is very clear that it's absolutely open for employers to try and use some of this technology in other areas of checks as well. So, in things like imposter checks, for example, utilizing facial recognition software can also be a very valuable tool. The key message, however, has to be that it is never possible for an employer to completely delegate a right to work check for anybody. So even if using one of these external businesses that offer these very specialist services, as an example, it will always remain on the employer to confirm the information that they receive from that service is actually directly relevant to the individual who is in front of them.
Joe Glavina: “Anything else to add, Shara?”
Shara Pledger: “I think the thing that's most helpful when we talk about this expansion of the right to work scheme to include other categories of individuals is that it's very clear cut about when commencement is taking effect. This only applies to individuals who are actively engaged by the business from 1 October. So businesses that already have ongoing relationships with some of these workers where they may already be engaged in delivering work or services, they won't be caught by this. We are only looking at individuals engaged from 1 October onwards.”
So, the key point for employers is that from 1 October Right to Work checks extend beyond conventional employees to a wider range of working arrangements. Employers need to understand who is caught and make sure their checking processes reflect the new rules.
Shara is currently working with a number of clients helping them prepare for these changes. If you would like help with this, please do contact Shara – her details are on the screen for you.