Hiring staff is a key component in growing your family business and as your business grows, you will start to develop your own on boarding practices. Crucially however, you must ensure that you are aware of, and carry out, right to work checks on all new joiners.
Right to work checks need to be completed on all new hires regardless of an individual’s nationality or whether they are related to you or anyone else in the business. They must also take place before your new hire starts work. The onus of carrying out these checks falls on the business owner, or if available, an HR professional or consultant. We spoke to by Lisa Uttley, immigration solicitor at Gherson Solicitors LLP to find out more.
If you are carrying out right to work checks, and more importantly, carrying them out correctly, your business will be protected from liability in the event that you do hire any individual who turns out not to be legally employable in the UK. Failing to carry out right to work checks altogether and/or incorrectly can expose you to severe penalties that could prove to have a very negative effect hit on your business. Home Office fines can reach up to £20,000 per illegal worker, for example.
The Home Office is responsible for designing right to work check policies and recently have made a number of changes to how checks must be carried out. COVID-19 concessions ended on 30 September 2022, and on 1 October 2022 the ‘new’ right to work regime came into force.
Historically, right to work checks have been a source of confusion for business owners and HR professionals alike due to a lack of streamlined guidance from the Home Office. The changes introduced on 1 October 2022 left those undertaking the checks to pick from one of three following types:
Online Right to Work Service (ORWS)
You must use this service where your new hire holds a valid Biometric Residence Permit (BRP), Biometric Residence Card (BRC), Frontier Worker Permit, or e-visa (for example, under the EU Settlement Scheme). The ORWS cannot be used on British citizens or Irish nationals.
Using the ORWS has two parts. Firstly, you must request for your new hire to generate and send you a unique share code. Their most recent Home Office approval letter will provide guidance on how they can do this. Then, once you have received your employee’s share code, it needs to be inputted via the relevant ORWS website for employers, along with the employee’s date of birth.
If your new hire has the right to work in the UK, this will display immediately on screen, including a summary of the types of work that they are allowed to do in the UK and for how long they are able to work.
Online Employer Checking Service (ECS)
You must use this service where your new hire has a pending immigration application with the Home Office and they are therefore unable to use the ORWS described above due to not possessing a valid BRP/BRC/e-visa etc.
By using the ECS, you are seeking confirmation of the individual’s right to start employment directly from the Home Office, meaning that you will not get an immediate response.
Manual checks can only be completed on British citizens or Irish nationals holding valid passports. In response to the COVID-19 pandemic, the Home Office had introduced flexibility for employers to complete manual checks over video call and for scans of immigration documents to be accepted. These flexible measures have now been revoked, so in order to manually check a British/Irish national’s right to work, you must have them physically attend your offices with their original valid passport for your verification.
Third Party Checks
The Home Office has introduced ‘certified digital identity service providers’, also known as IDSPs, into the right to work process. They can undertake the checks on an employer’s behalf. IDSPs are Home Office-authorised private companies who will charge a business to undertake checks on their behalf. This does not shift the liability for incorrectly undertaken checks to the IDSP, which will remain with the business, as will any penalties.
Ultimately, whilst the new right to work check regime might feel daunting now, taking the time to familiarise yourself with how it works and staying up to date will put you in good stead for ensuring your business complies with all relevant laws and can confidently grow its employee numbers in the future.