Updated Right to Work Guidance For Employers: What Do You Need To Know?

What is a Right to Work check?  

A Right to Work (RTW) check is something all job applicants have to go through before they can become legally employed. It involves a thorough check of relevant documentation to confirm someone is legally entitled to work in the UK.  

Whether you run a business, have responsibility for hiring decisions, or work within HR, RTW checks are fundamental to ensure your workforce is compliant. Leaving the EU has kickstarted the wheels of legislation and things are going to be changing.   

The Home Office published updated guidance in December 2020 to help employers across the nation ready themselves for the coming changes. In this article, we will examine the current situation along with the anticipated change.   
 

Grace Period  

At the moment, we are in a legislative grace period and this will continue until the 30th June 2021. New rules will be released by the Home Office on that date to help guide on the next stage of the Brexit transition. Until then many of the existing rules will remain the same:  

• Employers can still accept EEA Passports and national ID cards as proof of RTW  

• EEA nationals living in the UK before December 2020 are not affected by the new rules as they are eligible for settled status through the EU Settlement Scheme.  

• RTW checks carried out on employees who are EEA nationals will not need to be repeated as long as they were employed before the end of the grace period.  

• The actual process of carrying out a RTW check i.e., checking ID documents, will remain the same.  

Whilst this clarification is definitely welcomed by employers, it is not without its issues. There is still a risk that employers could unwittingly involve themselves in a civil offence.   

Due to these rules, employers would be able to use an EEA passport as proof of right to work in the UK, even though someone who travelled to the UK after the 1st January 2021 may not have automatic RTW. At the time of writing, we are still awaiting clarification from the Home Office about this potential loophole.  
 

Discrimination Concerns  

It may seem logical to assume that one way to mitigate this risk would be to ask any EEA employees or applicants to also evidence they have settled status or have applied for settlement. However, the Home Office specifically advise against doing this as it leaves employers at risk of a racially biased discrimination lawsuit.  

EEA nationals resident in the UK prior to December 2020 are entitled to use their home nations ID documents as proof of RTW. This means you cannot require them to prove they have applied for the EU Settlement Scheme, or qualify for settlement based on points.  

Being embroiled in a discrimination lawsuit can be time-consuming, costly and cause irreparable damage to an organisation's reputation. Not something worth risking at a time of economic uncertainty.  

What can you do?  

Obviously, you cannot be expected to put the recruitment of new candidates on hold. Recruitment is essential to ensure a fully functioning workforce. We do have a few tips that can help you manage the process in these confusing times:  

• Make advice and information available to any recruits or staff from the EEA. Encouraging an open dialogue about these things means that you can stay informed.   

• Enquire as to when they originally immigrated to the UK. Their date of arrival should give you a good idea of whether they arrived before or after the Brexit transition period.   

• Make sure you are only asking for relevant documentation, passport or national ID card, as a requirement.  

DBS Checks  

The documents that are acceptable for the ID verification stage of a DBS application are largely the same as for RTW checks. This is because an individual needs to have RTW within the UK to have a DBS carried out on them in the first place.   

We regularly come across organisations that wrongly assume that the Disclosure and Barring Service automatically check someone’s RTW when they process a check. This is not the case. As an employer, you are always responsible for confirming that your employees have the correct legal entitlement to work within the UK.  

We cannot stress enough how important thoroughly checking your candidate's documentation is. Both for RTW checks and DBS Checks.   

For more information about anything in this article, or, how our background screening solutions can help you, get in touch! You can give us a call on 01254 355688 or drop us an email at letstalk@personnelchecks.co.uk