This article gives a summary of the recent UK Government update on RTW checks for employers and a guide to Veremark’s new process for the Home Office online RTW check.
What has changed?
The UK Government has updated its guidance for employers conducting Right to Work (RTW) checks. The new guidelines require employers to personally perform the Home Office online RTW checks when a sharecode is required for non-British and non-Irish citizens in order to have a statutory excuse.
You can find the full text of the "Employer's guide to right to work checks" at the following link: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide.
Companies can continue to use a third party specifically for the digital RTW checks of British or Irish citizens with a valid passport (or Irish passport card).
However, Companies will no longer be able to establish a statutory excuse if a third party, (e.g., recruitment agency, professional adviser, or IDSP), performs the online RTW check for sharecodes or a manual document-based sharecode check.
Why is this important?
This guidance advises an employer how to conduct a RTW check and sets out the specific actions you can take to prevent liability for a civil penalty. This is called ‘establishing a statutory excuse against liability for a penalty’.
This guidance applies to RTW checks conducted on or after 26 January 2023 to establish or retain a statutory excuse from having to pay a civil penalty for employing a person who is not permitted to do the work in question.
Where employment commenced on or after 6 April 2022, and a statutory excuse was established for the duration of that person’s employment before 26 January 2023, the document checks set out in the ‘Employer’s guide to right to work checks’, last updated on 6 April 2022, continue to apply.
How to obtain a statutory excuse?
If you conduct the checks as set out in the mentioned government guidance and the code of practice, you will have a statutory excuse against liability for a civil penalty in the event you are found to have employed someone, who is disqualified from carrying out the work in question, by reason of their immigration status. This means that if we find that you have employed someone who does not have the right to do the work in question, but you have correctly conducted Right to Work checks as required, you will not receive a civil penalty for the illegal worker in question.
Who is responsible?
As an employer, you're liable for the civil penalty, not the staff who conduct Right to Work checks. Using an Identity Service Provider (IDSP) doesn't remove your obligation to comply with the guidelines. Even if you use an IDSP or third-party provider, you're still liable for the civil penalty if the check wasn't completed correctly and the employee is found to be working without the correct permission.
The new guidelines indicate that employers must personally carry out the Home Office online RTW check when sharecode is used for non-British and non-Irish citizens:
- “Other than where you use an IDSP for checks on British and Irish citizens who hold a valid passport (including Irish passport cards), you cannot establish a statutory excuse if the check is performed by a third party, such as a recruitment agency or your professional adviser.”
and
- “However, other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.”
How to conduct a Home Office online RTW check?
Employers can conduct a check by accessing the Home Office online service ‘View a job applicant’s right to work details’ on GOV.UK. The online service allows checks to be carried out by video call, and employers do not need to see physical documents as the right to work information is provided in real-time from Home Office systems.
There are three basic steps to conducting a Home Office online RTW check:
- use the Home Office online RTW checking service ‘View a job applicant’s right to work details’;
- satisfy yourself that the photograph on the online RTW check is of the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter); and
- retain a clear copy of the response provided (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.
If the online RTW check by the Home Office doesn't confirm that someone has the right to work in the UK, you won't have a valid excuse if you still hire them. Employing someone you suspect or know doesn't have the right to work could be a criminal offense.
Veremark’s new process for Home Office online RTW check
Going forward, we kindly request you to visit the Home Office website to download the RTW PDF results document. This document will be essential for verifying the work eligibility of candidates.
Rest assured, the current candidate application form will remain unchanged, ensuring a seamless candidate journey. However, to streamline the process and save you valuable time, we will continue to ask candidates to provide us with the sharecode associated with their RTW check.
If a candidate fails to provide the sharecode, Veremark will take necessary action to chase them, just as it is currently done.
Please note that Veremark will no longer conduct the Home Office online RTW check using the sharecode. Instead, we will make a note on our platform that you can view on the Candidate Profile page. This note will include the sharecode number, allowing you easy access to this information. At this point, we will mark the check with the "Review" status, thereby completing our involvement in the process.
Following this, it will be your responsibility, as the employer, to visit the Home Office website to download the RTW PDF results document. Once obtained, you can upload this document to our standard documents section on our platform, similar to how you upload other documents. By doing so, you will have all the RTW documents for your employees conveniently stored in one place, as required by the Home Office.
Options for Demonstrating the RTW
Prospective employees are allowed to choose how they wish to prove their right to work. This can be through an IDSP service, the Home Office online RTW check, or through a manual document check. You cannot mandate how an individual proves their right to work. It is important to provide equal opportunities for individuals to demonstrate their right to work to avoid discrimination.
If someone uses an expired British or Irish passport (including passport cards) to prove their eligibility for a RTW check, an IDVT check won't be valid. The employer must manually check the original document in the prescribed manner to obtain a statutory excuse.
Contact Information for Employer and Employee Support
Employer Enquiry helpline: If you require assistance with conducting a RTW check, you can reach out to the Employer Enquiry helpline at 0300 790 6268. They are available to assist you from Monday to Thursday, 9am to 4:45pm, and on Fridays from 9am to 4:30pm.
Employee helpline: If your employee requires assistance with accessing or using the Home Office online immigration status services, they can contact the UKVI Resolution Centre at 0300 790 6268, selecting option 3. The centre is available to help from Monday to Friday (excluding bank holidays) between 8am and 8pm, and on Saturdays and Sundays from 9:30am to 4:30pm.
Further resources
- Employer's guide to RTW checks: 28 February 2023" https://www.gov.uk/government/publications/right-to-work-checks-employers-guide.
- Code of practice on preventing illegal working: 6 April 2022
https://www.gov.uk/government/publications/illegal-working-penalties-codes-of-practice-for-employers