Changes to the Right to Work Check Process After Brexit

Employers must be aware of the potential fines they could face if they employ an illegal worker without having conducted a proper verification of the right to work. It is essential for companies to ensure that all applicants are treated equally, regardless of their nationality. Irish citizens can continue to use their passport or passport card to prove their right to work. Employers can also use the Home Office's online service to check if an employee has applied for pre-established or established status in the United Kingdom and, therefore, their right to work. It is not necessary to ask current employees about this.

The Ministry of the Interior's guidance on carrying out checks on the right to work changes periodically, so employers should consult the most recent guidelines and any relevant legislation to guarantee that they are following the correct procedure in order to establish a legal excuse. The Home Office has been carrying out more and more ad hoc checks on companies as part of its “hostile environment” policy over the past two years, with the aim of making it increasingly difficult for people to work and reside illegally in the United Kingdom. Right-to-work checks must be performed before an employee begins working, but it is generally best to perform them as late as possible during the hiring process in order to prevent job applicants from arguing that hiring decisions have been based on their nationality or immigration status. Controls accrediting the right to work must be maintained for the entire duration of the employee's employment and for two years after that. If retrospective checks are carried out, employers have an obligation to do so in a non-discriminatory manner. Many employers are not fully aware of all the aspects involved in monitoring the right to work, and many of them are breaking the law in this area.

It is essential for companies to check the most recent guidelines of the Ministry of the Interior, which can be found here, in order to ensure that their checks are up to standard. The Government has temporarily adjusted the requirements for adequate monitoring of the right to work of newcomers due to COVID-19, in order to make things easier for employers. As an alternative to manually verifying the right to work, employers can choose to use services from a certified IDSP (Identity Document Validation Technology) provider, without requiring employees to provide original documents. If manual verification is used, employers must keep a copy of each employee's documentation that proves their right to work and a record of when it was done. This will provide them with a “legal excuse” if they hire an IDSP using IDVT with respect to a British or Irish citizen (with a valid passport or an Irish passport card). Now that Brexit has happened and the transition period has ended, more and more employers are seeking advice on controls for right-to-work and are employing EU citizens. It is important for employers to understand that they must comply with all regulations related to verifying employees' right-to-work status.

Failing to do so could result in hefty fines or other legal repercussions. Employers should always consult with legal experts or immigration advisors if they have any doubts about how best to comply with these regulations.

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