Total Business Magazine

How Can Employers Avoid Falling Foul of Right To Work Checks?

Steve Smith, CEO of Sterling (EMEA), discusses how employers can successfully deploy their background screening in the hiring process.

 

When it comes to background screening, one of the most essential methods, in terms of both legal compliance and safety of your organisation, is Right to Work checks. However, in a recent poll conducted during Sterling’s “Getting Right to Work Checks ‘Right’” webinar with the Home Office, it was found that almost a third of businesses aren’t completely confident in their obligations when it comes to these checks.

This is a sizeable amount when you consider the fact that failure to maintain that your employees actually have the right to work in the UK can lead to penalties, fines and huge damage to employer brand. However, with the uncertainty of Brexit, and the recent move to take checks online, there are a myriad of factors making this more difficult. So, what do you need to bear in mind to prevent falling foul of the changes to Right to Work checks?

 

Understand your legal obligations

The first step with any right to work checking program is to make sure you and your team are informed on your compliance obligations. UK Right to Work legislation, requires employers by law to check to see if their employees have the right to work in the country, and failure to do so can lead to heavy penalties and fines. This applies to all workers, whether permanent or contractor.

It’s also important to remember that any selective method of screening can potentially put you in violation of the Equality Act 2010, which could lead to huge fines and penalties. Therefore, screening for right to work checks must be completed before the day that a job begins, or ideally well before this day, as these can take some time to complete.

By conducting screening compliantly, you will have a statutory excuse against liability for a civil penalty in the event you are found to have employed someone who is prevented from carrying out the work in question.

At the moment, for the majority of workers, checks should be a straight-forward, three-step procedure. This includes:

  • Obtaining original versions of one or more acceptable documents
  • Checking the document’s validity in the presence of the holder
  • Making and retaining a clear copy, and recording the date the check was made

 

Failure to do this can result in the following punishments:

  • A civil penalty of up to £20,000 per illegal worker
  • In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
  • Closure of the business and a compliance order issued by the court
  • Disqualification as a director
  • Not being able to sponsor migrants
  • Seizure of earnings made as a result of illegal working
  • Review and possible revocation of a licence in the alcohol and late-night refreshment sector and the private hire vehicle and taxi sector

It’s important to remember that, as an employer, you can be liable for penalties even if the actual check is performed by a member of your staff. You may also be unable to establish a statutory excuse if the check is performed by a third party, such as a recruitment agency or professional advisor – so any partners that you may use for your right of work checks should be thoroughly vetted in advance.

 

Online or offline?

Choosing a method of carrying out these checks is crucial and must be established before you begin screening. Currently, there are a lot of changes to the traditional system, with a large move towards taking checks online and away from using physical documents. However, it’s important to bear in mind that UK residents will still have to go through the document route. Here’s what you should know concerning online checks.

It will not be possible to conduct an online right to work check in all circumstances, as not all individuals will have an immigration status that can be checked digitally. Currently, the Home Office’s online checking service supports checks in respect of those who hold:

  • A biometric residence permit
  • A biometric residence card
  • Status issued under the EU Settlement Scheme

It is also important to be aware that, while you may choose to encourage use of the online checks and may support individuals in doing so, you are not permitted to make online checks mandatory. If an individual does not wish to demonstrate their right to work using the online service, even if their immigration status or documentation is compatible, you should conduct a manual check.

 

Understand where right to work fits in as part of wider program

A right to work check should be part of a comprehensive background screening policy. This is why it’s highly valuable to have a clear-cut screening program and understand where right to work checks fit into this. Therefore, HR professionals should make implementing a well thought out, consistent screening policy a priority. This should clearly outline the objectives, process and types of background checks for each position, and how the results of these can affect hiring decisions.

 

Keep it simple

At a time when the rules and requirements around right to work checks look set to become more complex, whatever stage you’re at when it comes to knowing your obligations, inaction is simply inadvisable. By strictly adhering to a number of simple steps, HR teams can be equipped to stay ahead of the changes to right to work checks, and put themselves in a good position to prepare for any future developments.

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