Thu 30 Mar 2023

Important updates to Right to Work guidance

The recent Home Office update contains important changes.

The Home Office regularly update their guidance setting out how employers should carry out right to work checks on employees. This is important as only by following the correct procedure can employers protect themselves against penalties for accidently employing someone who does not have the right to work, or who is not allowed to carry out particular work due to a visa restriction.

The most recent guidance was published at the end of February 2023, and it contains an important clarification of one of the significant changes introduced last year.

From 6 April 2022, the Home Office began to allow employers to use approved identity service providers (IDSPs) to carry out right to work checks using Identification Document Validation Technology (IDVT). This is an electronic process which can be used in lieu of the traditional face to face right to work check, and is particularly attractive for employers who allow employees to work remotely and therefore may find it difficult to carry out a face to face check.

The Home Office's latest guidance clarifies that even when using an IDSP, employers must retain evidence that a check has been carried out.  This was best practice anyway, as only employers are liable for right to work penalties and the use of IDVT does not allow a business to outsource their obligation to check the right to work.

We recommend that employers using IDSPs adopt the following process:-

  1. Only use a provider that appears on the Home Office certified list.
  2. Make sure to obtain a copy of the IDVT check and retain it on file.
  3. Before an employee starts work, carry out a face-to-face meeting or video call with them, to confirm that the details on the IDVT check match the person. A record should be kept of who carried out this check, how it was carried out and when it was carried out.

We also recommend employers regularly audit their records to ensure the correct procedures are being followed. If you need help reviewing your right to work records or processes please get in touch.

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