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UK employers risk delegating too much of their right to work checks

Out-Law News | 09 Nov 2022 | 9:58 am | 2 min. read

UK employers may be delegating too much of their right to work checks to third-party identity service providers (IDSPs), according to one legal expert.

Shara Pledger of Pinsent Masons warned that confusion over the services that IDSPs can perform risked leaving employers unwittingly exposed to financial penalties. “A significant number of employers may be delegating checks on British and Irish workers to IDSPs, mistakenly believing that doing so means they do not need to undertake any checks themselves,” she said.

Employers have been obliged to carry out mandatory remote checks on non-British and non-Irish workers via the Home Office online checking service since April 2022. For British or Irish workers that have their current passport or Irish ID card, employers have been able to use the Identification Document Validation Technology (IDVT) service, introduced earlier this year. That service is delivered remotely through third-party IDSPs but is not mandatory for employers to use.

Pledger Shara

Shara Pledger

Senior Associate

Some third party identity service providers appear to have oversold what they can do, and employers may now have contracts in place with them which will lead to right to work checks that offer no protection against civil worker penalties

In cases where British or Irish workers do not have a current passport or Irish ID card, or where they do but employers elect not to use the IDVT service for checks, the employer can conduct manual document checks themselves. Since 1 October, however, employers have been obliged to review and copy original identity documents, necessitating either a return to face-to-face checks or delivery and return of documents. The only way to avoid this inconvenience is to engage an IDSP.

Pledger said: “Lots of organisations have gone with the IDSP option because work practices have changed, and it is harder to view original documents nowadays. But some IDSPs appear to have oversold what they can do, and employers may now have contracts in place with them which will lead to right to work checks that offer no protection against civil worker penalties.”

Pledger said IDSPs are able to verify a current British or Irish passport, as well as current Irish passport cards, through the IDVT service. They can also conduct checks to ensure that the identity document provided matches a selfie uploaded by the document holder, and produce a report for the employer to confirm whether the British or Irish document is verified.

“But they cannot verify documents that are not current British or Irish passports, or Irish passport cards – and cannot confirm that the person arriving with the employer for work is the same person who has been verified. The employer must still conduct an ‘imposter check’ in person or via videocall to confirm a match between the prospective employee and the IDSP report,” Pledger said.

She added: “IDSPs cannot conduct right to work checks for British or Irish nationals without the stated documents, and manual document checks must be conducted by the employer directly.  IDSPs also cannot conduct right to work checks for non-British or non-Irish workers. The IDVT service operated by IDSPs is only applicable to current British or Irish passports, or Irish passport cards.”

Pledger said employers wishing to hire a migrant worker should use the Home Office online share code system coupled with an in-person or video call meeting to confirm a match between the Home Office report and the worker. “Checks carried out by a third party are invalid unless completed by an IDSP. The Home Office digital checking system for migrant workers is not IDVT and has no associated IDSPs. As a result, it is our recommendation that checks on non-British/non-Irish workers are conducted by the employer directly, as are all imposter checks regardless of nationality” she added.

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