It is nearly two years since we sent a previous newsletter, which is when we updated our Employment Details Forms for new and existing employees, to reflect changes in Data Protection legislation (GDPR).

The end of the transition period, after leaving the EU, on 31st December 2020 meant we needed to review the right to work section of these forms in the light of new immigration law. The good news is that there are no significant changes to either the List A or B documents that need to be checked.

We have, however, taken the opportunity to include provision for Online Checks, which are likely to be an easier option for both parties, especially in the current climate, where face to face meetings may be difficult, and Post Office delays may make people more reluctant to post documents. It must be stressed that online checks, which have been available since 2018, only apply to migrants, so will not work for the majority of job applicants.  It gives employers access to up-to-date, real-time information about migrants’ right to work, making it easier for individuals to prove their rights in the UK. The Right to Work Checking Service is secure and free to use, and means that employers can use the online service to demonstrate they conducted the necessary right to work checks on migrants.

Do not forget that job applicants are protected against discrimination relating to race. The nature of right to work checks opens up the risk of a race discrimination claim if employers treat people differently based on their race, or perceived race when carrying out these checks. The same documentation and checking processes need to be completed on all prospective employees (and current employees where appropriate), without making assumptions based on appearance or name, without seeing evidence.

For those unfamiliar with doing these checks, there is a 3-step process:

Step One: Obtain original documents from the prospective employee prior to starting employment, or at the latest, on the first day of employment.

Step Two: Take all reasonable checks to verify that the document is genuine, relates to the actual prospective employee, and does not exclude the right to work in that particular type of work.

Check:

  • Photographs are consistent
  • Dates of birth are the same
  • Names are consistent or evidence of a name change
  • Qualifications are current and consistent with other documents
  • They are genuine and have not been tampered with
  • They relate to the person providing them.

Step Three:  Copy the document in a non-alterable format and keep securely.

They need to be retained securely for the length of their employment, and at least two years after that. We recommend that the checker writes the date of checking on the copy, and signs it as a certified copy. All of the document ought to be copied, unless the document is a passport or travel document in which case just copy

  • The front page
  • Any page containing personal details, e.g. photograph and date of birth
  • Any pages with a UK Government right to work endorsement

We have made a few minor changes to the wording, e.g. to reflect that it is now simpler for UK nationals without British passports, to demonstrate their citizenship by enabling them to use short birth or adoption certificates, which they can get for free, instead of the long versions.

Other form changes

Whilst we were making these changes, it seemed like a good idea to review the rest of the forms, not least because of changing requirements and sensitivities.  For example, we have removed some information that is no longer required. The medical questions have also been slightly amended so that they now read better.

You will also see that we refer to the word “worker” rather than “employee”, as it is important that you undertake the right to work checks for everyone that works for you, which will include casual workers and those with contracts for services.  Also, it is advisable to have their personal contact details to hand should you need them, although other sections of the form may not be relevant to them.

In light of the way that driving licences are now verified, i.e. electronically via a shared code, and the fact that driving offences are also subject to time limits, we have re-worded the driving licence details section within the New Starters form, and added into the Existing Worker form, as employer’s still have a duty of care to check all their existing workers are allowed to drive, even if that is only to drive to and from work in their own private vehicles.

The words about privacy in relation to data protection have also been amended.

Please note that we have changed the declaration wording to reflect the fact that if people have been ‘misleading’, then they will be dealt with appropriately according to their length of service.  This means employees with less than 2 years’ service will not be subject to the full obligations of the Disciplinary Procedure, but will be dealt with appropriately via the simplified three step process.

The form for new workers should be used with immediate effect.  It is recommended that, unless clients have conducted a thorough review of all workers’ personal details recently, that they take the opportunity to update the personal data they hold on their workforce, as data protection law requires. Despite exhortations and contractual obligations, workers are often very tardy in updating their employers about addresses, personal contact details (email and mobiles), medical details, and relevant driving licences etc.

Right to Work Checks during Covid 19

Checks continue to be mandatory, and employers must continue to check the prescribed documents. Right to work checks have been temporarily adjusted due to coronavirus. This is to make it easier for employers to carry them out.

Since March 2020, the following temporary changes have been made:

  • Ask the worker to submit a scanned copy or a photo of their original documents, via email or using a mobile app, rather than sending originals
  • Checks can now be carried out over video calls; ask them to hold up the original documents to the camera and check them against the digital copy
  • Record the date you made the check, and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker has a current Biometric Residence Permit or Card, or status under the EU Settlement Scheme, you can use the online right to work checking service while doing a video call – with the applicant‘s permission to view their details

If the job applicant or existing worker cannot show their documents, you must contact the Home Office Employer Checking Service. If the person has a right to work, they will send you a ‘Positive Verification Notice’. This provides a statutory excuse for 6 months from the date within the notice.

When the pandemic ends, employers will be asked to carry out retrospective checks on existing workers who started working during these measures, or required a follow-up right to work check during these measures i.e. whose documents were the List B category.

We will be running a free webinar on right to work checks within the next month, so if you are already on our database you will be sent an invitation to register.  However, if you are not and you would like to receive invitations to our webinars etc., please contact Jackie Bolton on 01480 677981 or jackie@backuphr.com.

If your organisation has not already been doing right to work checks, then we suggest that you listen to our webinar, and start retrospectively undertaking these checks, in order to potentially avoid the quite substantial penalties that the Home Office can issue, which include:

  • a civil penalty of up to £20,000 per illegal worker;
  • a criminal conviction carrying a prison sentence of up to 5 years;
  • an unlimited fine;
  • closure of the business, and a compliance order issued by the court;
  • disqualification as a Director;

We would recommend that even if you are not able to listen/participate on the actual day, if you register for the webinar, you will still receive a recording (including a copy of the presentation), which you can watch at a more convenient time.

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.