The Government recently announced changes to the ways that employers, including those in the furniture industry, can perform ‘right-to-work’ checks, writes employment law expert Nicola Smyrl, as she unknits some of the complexities of the new framework … 

There have been various press reports warning employers that these changes will be ‘costly’ for employers, at a time when many businesses are already affected by increasing costs.

It is unlawful to employ someone who does not have the right to work in the UK.  The consequences of employing an illegal worker are significant and can lead to a criminal conviction and/or a penalty of up to £20,000 per illegal employee. When an employer has carried out an adequate right-to-work check, the employer has a statutory defence if that worker is later found to be working illegally. 

Prior to the pandemic, under Home Office rules the majority of right-to-work checks were required to be conducted in-person. The prospective employee showed their documents evidencing their right to work, and the employer took copies and kept them.

On 30th March 2020, temporary adjustments were made to the requirement to conduct in-person right-to-work checks, to take account of the Government’s coronavirus restrictions. The adjustments allow the checks to be carried out over video calls, and for job applicants to send a photo of their documents to employers via email, rather than sending the originals.

The Government has announced that the temporary adjustments to right-to-work checks will end on 30th September 2022. This date has been pushed back on various occasions in response to concerns by employers about having to return to in-person checks. This may be difficult for some employers, given the increase in the number of employees working on a more flexible basis.

The Government has recognised that many employers will not wish to return to in-person checks, and has announced plans to implement the option to carry out digital or online checks for all employees.

Under the new rules, foreign nationals who have a biometric residence card, biometric residence permit or frontier worker permit can now only be checked online, not manually. They must provide their date of birth and share code to allow the employer to check their status using the Government’s online checking service. This is a free service, and as a result, manual checks will no longer be permitted. It will not be necessary for employers to carry out a retrospective check for employees where a manual check was completed on or before 5th April 2022.

In place of adjusted right-to-work checks, from 1st October 2022, employers will be able to use certified Identity Service Providers (IDSPs) to complete digital right-to-work checks for British and Irish citizens with valid passports. This will be an alternative to manual checks, and the IDSPs will complete these digital right-to-work checks on behalf of employers for a fee. The digital check will involve submitting images of personal documents rather than the original documents, using Identity Document Validation Technology instead. 

Manual checks can continue to be carried out for employees not covered by that initial point. This will mainly cover British and Irish nationals who do not require permission to work in the UK.

Full details of the new rules on right-to-work checks can be viewed on the Gov.uk website. Employers who have been conducting right-to-work checks under the current temporary adjusted measures will need to consider their approach to these checks in the future. If employers do not wish to return to manual checks, they will also need to factor in the costs of performing these checks in their future budgets.

But what impact will the changes have on employees? At present, it is common for prospective employees to be asked to provide right-to-work documentation during the early stages of the recruitment process. It is likely that many furniture businesses will delay undertaking checks until the later stages of the process, so they do not incur unnecessary costs in relation to candidates who will not ultimately be offered employment.  

An approach which involves checking the right to work at the latest stage possible is also advisable from the perspective of avoiding claims for discrimination.  Conducting checks at an early stage of the recruitment process may enable prospective employees to argue that their application has been rejected due to their race or ethnicity.

The Government has issued a new Code of Practice in relation to avoiding discrimination when conducting right-to-work checks, which all employers would be well advised to review. The code states the importance of treating all candidates fairly and having clear procedures in place for the recruitment and selection of workers based on equal and fair treatment.