As the United Kingdom has left the European Union and the Brexit transition period has ended, employers are increasingly seeking advice on EU citizens' right to work and employment checks. It is essential for employers to understand the changes in the right to work check process and ensure that they are following the correct procedure for establishing a legal excuse. An employer could face a fine if it employs an illegal worker and has not performed a proper verification of the right to work. This system will treat all applicants equally, regardless of where they come from.
Irish citizens can continue to use their passport or passport card to prove their right to work. Employers can invite employees to demonstrate their right to work by using the Home Office's online service to check if an employee has applied for prior or established resident status in the United Kingdom and, consequently, the right to work. The Home Office's guidelines on carrying out right-to-work checks change regularly, so it is necessary for employers to consult the most recent guidelines and any relevant legislation to ensure that they follow the correct procedure for establishing a legal excuse. An employer will not have a “legal excuse” to exempt themselves from liability for a civil sanction when an IDSP has performed a document-based manual verification or an online verification of the right to work.
Employers are strongly encouraged to have robust systems in place to carry out adequate controls on the right to work, in accordance with the law in this area. Right-to-work checks must be carried out before an employee starts working, but it is generally best to carry them out as late as possible in the hiring process to prevent job applicants from arguing that hiring decisions have been based on their nationality or immigration status. Although it is expected that, over time, all checks will need to be carried out online, not everyone will have an immigration status that can be verified online at this time. If retrospective checks are carried out, the employer has an obligation to carry them out in a non-discriminatory manner. It's important to note that you can only get a “legal excuse” if you are found to have employed an illegal worker, if the steps above are followed and a proper verification of the right to work is carried out. As an alternative to manual verification of the right to work, you can choose to use the services of a certified IDSP to verify the right to work of a British or Irish citizen using identity document validation technology (IDVT), without the person having to provide you with their original documents. Therefore, employers carrying out right-to-work checks will need to obtain additional evidence to establish a legal excuse against illegal work.
Right-to-work checks must always be carried out in accordance with the most recent guidelines from the Ministry of the Interior, which can be found here (the “Guidelines”). If you have performed a manual verification of the right to work, you should keep a copy of each employee's documentation attesting their right to work and a record of the date the verification was carried out. We have advised many employers on monitoring their right to work and preventing illegal employment procedures. It is essential for employers to understand these changes and ensure that they are following all necessary procedures for establishing a legal excuse against illegal work.
