The law has changed and employees' right to work can no longer be checked virtually. Gavin Webster explains what you should do
From 1 October, hospitality employers have needed to adopt new digital right to work checks for British and Irish nationals or revert to cumbersome manual in-person checks. It is no longer possible for employers to rely on the virtual checks introduced by the Home Office under its ‘Covid-19 adjusted right to work checks' concession.
The Immigration, Asylum and Nationalities Act 2006 introduced a legal requirement for all UK employers to check that all employees have a right to work in the UK.
In 2018, the Home Office launched its online Right to Work Checking service that enabled employers to conduct online right to work checks for certain individuals, mainly EU, EEA and Swiss nationals. Online right to work checking services were not available to UK or Irish nationals who make up most of the UK hospitality workforce, with checks having to take place in person.
The Covid pandemic prevented those physical in-person checks, and the Home Office responded by allowing virtual checks, typically conducted via online video calls. That concession stopped on 30 September. The digital identification verification for pre-employment checks for UK and Irish nationals, originally scheduled to take effect from April, will now be required.
The likelihood of inadvertently employing an undocumented worker is very low, but the impact could be high. If procedures are not properly followed, employers have no statutory excuse against illegal working and could face substantial fines or other sanctions.
Our experience suggests that many hospitality employers are still relying on the temporary ‘Covid-19 adjusted right to work checks' which allow for those individuals who cannot be checked on the online service to be done via video call rather than in-person with original documents. From 1 October, employers will have no choice but to revert to physical in-person checks on the first day of employment or use the new digital service.
In-person checks are cumbersome and slow and will likely cause problems for employers operating across multiple sites. The Home Office requires businesses to conduct digital checks via an authorised identification service provider with accredited identification documentation verification technology. There are many technology providers on the market, including our product Xydus.
These platforms use AI technology to scan and read documents together with a ‘selfie' of new employees. They automatically record the name and date of birth of the individual, pictures and the date of the check. Checks can be conducted from anywhere in the country, although documents that have expired will need to be checked manually. While the government would encourage employers to use an authorised identification service provider with accredited technology, it is not essential. Manual in-person checks can continue.
- Are you still using the Home Office's Covid concession to conduct right to work checks for UK and Irish nationals?
- Have you considered the impact of a return to physical in-person checks on the first day of employment for UK and Irish nationals?
- If moving to a digital right to work platform, ensure that it is an authorised identification service provider with accredited identification documentation verification technology.
The use of this technology will still require the human touch. Employers must satisfy themselves that a compliant check was conducted, that the person in the selfie is not an imposter, and if names differ, they must establish why, for example, a recent marriage. Checks must be retained for the length of employment plus two years.
Those employers who use accredited identification technology will still be liable for employees that have been unlawfully employed and can face fines of up to £20,000 for each employee if they are found to be working in the UK illegally.
*Gavin Webster is a senior manager at global mobility advisers Vialto Partners
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