As you probably know, UK employers are currently required to conduct Right to Work checks on all prospective employees to comply with illegal working legislation and avoid unlawful discrimination.
With uncertainty around Brexit greater than ever among UK businesses, we are often asked how Right to Work legislation and processes may change when we leave the European Union. The short answer is, of course, that none of us knows for sure. However, what we do know is that there are already significant numbers of illegal workers in the UK and the attraction as a country for more to come to is unlikely to reduce post-Brexit. It is therefore sensible to assume Right to Work legislation will not change dramatically in the short term, irrespective of what future immigration policy might look like. To that end, there are a few things for employers to consider in the months leading up to Brexit and beyond…
Right to Work – Brexit and beyond…
Firstly, the government have announced that employers should carry on conducting Right to Work checks on people from the EU, EEA or Switzerland in the same way as they do now until 1st January 2021. This applies even if the UK leaves the EU without a formal withdrawal agreement. So, the need to make thorough and consistent Right to Work checks on new employees and keep appropriate records of those checks remains.
You can find out more about how to carry out Right to Work checks and which documents are acceptable on the government website. In summary, you must obtain, check and copy the relevant identity documents from all your employees (including candidates you’re placing temporarily). Then keep records of these checks, either electronically or as a hard copy while a person is employed and for two years afterwards.
Secondly, the current process is unlikely to get any easier for your HR and onboarding teams in the short to medium term. The latest government whitepaper does suggest that the dual immigration system – one for non-Europeans and another for EU citizens – will disappear. However, new categories are being created which might apply to your employees – for example, the ‘EU settlement scheme’ which grants ‘settled status’ and ‘pre-settled status’.
The Home Office recently launched an online service, which allows certain people to prove their Right to Work status to employers using a ‘sharing code’. However, this is only available to EU citizens who have applied for settled status or non-EU nationals who have a Biometric Residence Permit. What’s more, the current requirement to evidence your checks and retain records appropriately still stands.
Given the ongoing uncertainty, I think there are some practical steps you can take now to try and prepare your business:
- Carry out a Right to Work audit
Make sure you have current and up to date proof of Right to Work for all your employees, both in-house and those that you’ve placed into temporary roles. Be sure that your records are stored correctly, with details of who made the check and when, and that all identity documents are still valid. If you need to run any follow-up checks, for example on visas that are expiring, make sure you do that too.
- Review your policies
Check that all offer letters and contracts explain your right to work policies clearly and would support any contractual changes you might need to make based on future legislative amends. Make sure you have clear policies around continuing to employ EU citizens – your organisation is at risk of unlawful discrimination if you’re seen to be taking steps to reduce employment opportunities for this group.
- Consider getting Right to Work support
More and more organisations are turning to electronic solutions to help their recruitment teams make consistent and compliant Right to Work checks, regardless of the circumstances or nationality of the candidate. The TrustID Right to Work service guides your users through a workflow, ensuring they ask for the right documents, and it is automatically updated as legislation changes. What’s more, it’s backed up by an expert team who are trained on the latest compliance so can offer further help and guidance. A service such as this means that you don’t need to train your staff to be Right to Work experts or update them on any legislative changes when the UK leaves the EU.
In summary, no-one knows quite how immigration legislation will play out in the coming months. However, getting your employment records in order now and making sure your onboarding teams have the very best tools to face any future changes will help to keep your business compliant come what may!
Tony Machin is the Chairman of the Association of Document Validation Professionals (ADVP). The ADVP was created in January 2018 to help promote the wider use of risk-based electronic validation of identity documents across the public and private sectors and to represent the growing number of companies operating in the sector. Tony is also CEO at TrustID, a major business in the UK identity document validation sector.