Employers in the UK are obligated to ensure that the people they employ have the appropriate rights to carry out the type of work offered, in order to prevent illegal working in the UK. Employers who fail to carry out the appropriate checks in this regard could be liable for large civil penalties (up to £20,000 per worker), and in some cases could even be committing a criminal offence.
In the event that a worker is found to be working illegally, the employer will have a statutory excuse (which is the employer’s defence against a civil penalty) if they carried out the appropriate right to work checks. An employee’s right to work can be established in three ways:
- carrying out a manual right to work check;
- conducting a right to work check using Identity Document Validation Technology (“IDVT”) via the services of a digital identity service providers (“IDSP”); or
- verifying identity via the Home Office online right to work check.
The type of check which should be carried out will depend on the immigration status of the intended worker.
Introduction of IDVT for right to work checks
In March 2020, in response to the Covid-19 pandemic, the Home Office made concessions for employers, which meant that these some right to work checks could be carried out remotely, rather than face to face. This change allowed employers to conduct checks on certain individuals’ legal right to work via video call. This was originally intended to be a temporary measure, however it has recently been announced that employers will be able to carry out LRTW checks for British and Irish nationals remotely until 30 September 2022. This extension is part of a wider scheme which will also allow employers to use new technology (being IDVT) to conduct a variety of ID checks remotely, including those for LRTW, from 6 April 2022.
How does IDVT work?
IDVT is provided by IDSPs. The Home Office is expected to release a list of certified providers for employers to choose from in due course. IDVT will only be available for verifying the following ID documents:
- Valid British passports
- Valid Irish passports
- Valid Irish passport cards
The process will involve the employer uploading a copy of the relevant ID document (i.e. copy of the passport), and then using the IDVT system to check:
- the ID is valid,
- if the identity claimed has a history,
- if the identity claimed has high risk of fraud; and
- that identity belongs to the person claiming it.
IDSPs are able to carry out right to work checks to a range of difference standards, or levels of confidence. The Home Office recommends that employers only accept checks that satisfy a minimum of a medium level of confidence, to ensure the check has been carried out properly. Employers must retain a copy of the output of any IDVT identity check for each employee for the duration of the employment, and for two years after the employment has come to an end.
What are the benefits of IDVT?
The service will allow those not within the scope to use the current Home Office online systems (namely British and Irish Citizens) to have their identity digitally checked.
Digital identity checking will reduce the employer’s exposure to fraudulent activity, by introducing secure methods that will be used universally across most employers. The ability to use the service remotely will also greatly increase the number of potential recruits and speed up the onboarding process.
Are there any drawbacks?
Expired passports, passport cards, and alternative ID cannot currently be checked using IDVT, therefore manual checks will have to be used still. The need for IDSP’s also means that private organisations are being invited in to facilitate the provision of these checks. This will carry a cost which could mean that employers see potentially substantial increase in compliance costs.
It is also not currently mandatory for an employer to use a certified IDSP. A certified provider will have to meet relevant scheme guidance and the standards set out in the UK Digital Identity and Attributes Trust Framework, which is a set of rules organisations will agree to follow to make sure the check provided is secure and trustworthy. Employers who us an uncertified provider may therefore again open up their risk to fraudulent activity. The legislation enabling use of IDVT will come into effect on 6 April 2022. Whether the system will be live from this date will most likely depend on whether the technology has finished development.
How Moore Barlow can help
If you want a professional and personal service from experienced business employment lawyers, Moore Barlow are here to help. We are recognised by the Legal 500 for providing excellent, proactive, and responsive practice, in addition to ranking in the Chambers and Partners directory and The Times Best Law Firms list.
Contact Moore Barlow today, if you require advice or assistance from an employment law solicitor.