Changes to the Right to Work Check Process After Brexit

As an employer, you could face a hefty fine if you employ an illegal worker and have not performed a proper verification of the right to work. This system is designed to treat all applicants equally, regardless of their nationality. However, Irish citizens can still use their passport or passport card to prove their right to work. Employers can ask employees to demonstrate their right to work by using the Home Office's online service to check if they have applied for prior or established resident status in the UK and, consequently, the right to work. You don't need to ask current employees about it.

The Home Office's guidelines on carrying out right-to-work checks change regularly, so it is important for employers to consult the most recent guidelines and any relevant legislation to ensure that they follow the correct procedure for establishing a legal excuse. After that, you can move on to the last step, which is noting the date on which you are verifying the documents before copying them. Right to work checks must always be carried out in accordance with the most recent guidelines from the Ministry of the Interior, which can be found here (the “Guidelines”).If the employee portal is used to perform the verification of the right to work, this will not constitute a legal excuse. Therefore, employers who carry out checks on the right to work will need to obtain additional evidence to establish a legal excuse against illegal work.

As an alternative to manual verification of the right to work, you can choose to use the services of a certified IDSP (Identity Document Service Provider) to verify the right to work of a British or Irish citizen using identity document validation technology (IDVT), without them having to provide you with their original documents. If retrospective checks are carried out, employers have an obligation to carry them out in a non-discriminatory manner. It's important to note that you can only get a “legal excuse” if you are found to have employed an illegal worker, if all of these steps are followed and a proper verification of the right to work is carried out. An employer will not have a “legal excuse” if they use an IDSP for manual document-based verification or online verification of the right to work. Due to COVID-19, the Government has temporarily adjusted the requirements for adequate control of the right to work of newcomers, in order to make it easier for employers. While right-to-work checks must be carried out before an employee starts working, it is generally best practice to carry them out as late as possible in the hiring process in order to prevent job applicants from arguing that hiring decisions have been based on their nationality or immigration status.

There is no obligation for employers to carry out retrospective checks on existing employees' right to work. It's worth noting that employers will only benefit from a “legal excuse” if they hire an IDSP and prove the right to work through IDVT (Identity Document Validation Technology) of a British or Irish citizen (with a valid passport or Irish passport card). When using this checking service, employers must use the employer service portal in order to establish a legal excuse.

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