UK employers issued update on right to work check requirements

The update (66 pages/ 883 KB), published earlier this month, increases the penalty for employers from £20,000 per illegal worker to a maximum £60,000 depending on circumstances. The update also includes new guidance requiring employers to take additional steps to ensure compliance where they engage sponsored workers for so-called ‘supplementary work’.

Shara Pledger, corporate immigration expert at Pinsent Masons, said: “Employers should take extra care when conducting right to work checks from 13 February. New guidance develops several of the steps needed when checking different worker categories, including scenarios involving supplementary employment (where workers are sponsored elsewhere).”

The recently published update applies to right to work checks conducted on or after 13 February, setting out specific actions that employers can take to establish a statutory excuse against civil penalty. By following the guide, employers can avoid penalties for employing a person who is not permitted to do the work in question.

Pledger described one of the most striking changes as “relating to the employment of EEA nationals and their family members, particularly the changing status of those workers since Brexit”. She said, “While the process to correctly check new employees from 1 July 2021 has been clear, how employers should react to their pre-existing employees has been more complicated. With no need to conduct retrospective checks, the potential for unwitting employment of illegal workers has been apparent, while the risk of penalty was mitigated by a prescribed process through which the worker could be encouraged to apply for status within 28 days.” That process is now withdrawn, and the new guidance confirms that if an employer identifies an existing employee who no longer has a right to work, they are required to take appropriate action which may include terminating employment without allowing any grace period for status to be regularised.

There is also further clarification on use of third parties in conducting checks – which Pledger described as “a topic that remains contentious as many of these identify service providers offer checking services which appear to offer no protection to employers.” Prior to earlier changes to right to work policy in April 2022, employers were already able to use digital identity service providers (IDSPs) to enhance their pre-employment checking processes and minimise the risk of fraud.

Since April 2022 the services permitted for these providers has increased, covering checks on passports and some ID cards held by British and Irish workers. Pledger commented, “The most recent Home Office guidance reiterates earlier clarification that other than where IDSPs are used expressly for right to work checks of British or Irish citizens with a valid passport, or Irish passport card, it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.