As you’re no doubt aware, all UK employers are currently required to conduct Right to Work checks on every prospective employee to comply with illegal working legislation and avoid unlawful discrimination
But with huge uncertainty among UK businesses about Brexit, we are often asked how Right to Work legislation and processes may change when we leave the European Union.
Of course, the answer is that none of us know for sure. However, we can be sure that there are already a significant number of illegal workers in the UK and that the attraction to try and gain illegal employment in the UK is unlikely to reduce post-Brexit. Therefore, it seems sensible to assume that there’ll be no dramatic changes to Right to Work legislation in the short term, irrespective of what future immigration policy might look like. To that end, here are a few things that I think employers should consider in the months leading up to Brexit and beyond…
Checks until 1st January 2021
Firstly, the government have confirmed that until 1st January 2021, employers should carry out Right to Work checks on people from the EU, EEA or Switzerland in the same way as they do now. This applies even if the UK leaves the EU without a formal withdrawal agreement. So, you still need to make thorough and consistent Right to Work checks on new employees and keep appropriate records of those checks.
You can find out more about how to carry out Right to Work checks and which documents are acceptable on the government website. In summary, you must obtain, check and copy the relevant identity documents from all your employees (including candidates you’re placing temporarily). Then keep records of these checks, either electronically or as a hard copy whilst a person is employed and for 2 years afterwards.
Secondly, the current process isn’t likely to get any easier for your HR and on-boarding teams in the short to medium term. The latest government whitepaper does suggest that the current dual immigration system – one for non-Europeans and another for EU citizens – will disappear. However, there are also new immigration categories being created which might could apply to your employees – for example, as part of the ‘EU settlement scheme’ which grants ‘settled status’ and ‘pre-settled status’.
The Home Office recently launched an online service, which allows employers to check the Right to Work status of certain employees using a ‘sharing code’. However, this is only available to EU citizens who have applied for settled status or non-EU nationals who have a Biometric Residence Permit. What’s more, you’re still required to retain evidence of your checks and keep the appropriate records, however you check their status.
What can you do to prepare your business?
I think there are some practical steps you can take now to try and prepare your business, even during uncertain times pre-Brexit:
- Run a full Right to Work audit
Check that you have current and up to date proof of Right to Work for all your employees, both in-house and those that you’ve placed into temporary roles. Make sure that you’re storing records correctly, with details of who made the check and when, and that all identity documents are still valid.
If you need to run any follow up checks, for example on visas that are expiring, make sure you do that too.
- Review your policies
- Check that all offer letters and contracts explain your right to work policies clearly and would support any contractual changes you might need to make based on any future changes to legislation. It’s a good time to make sure you have clear policies around continuing to employ EU citizens, as your organisation is at risk of unlawful discrimination if you’re seen to be reducing employment opportunities for this group.
- Consider getting additional Right to Work support
A growing number of organisations, from both the public and private sectors, are turning to electronic solutions to help their recruitment teams make consistent and compliant Right to Work checks, regardless of the circumstances or nationality of the candidate.
The TrustID Right to Work service guides users through a workflow, ensuring they ask for the right documents. And the software is automatically updated as legislation changes. What’s more, it’s backed up by our expert helpdesk team who are trained on the latest compliance guideline so can offer further help and guidance if you need it. A service such as this means that you don’t need to train your staff to be Right to Work experts or update them on any legislative changes when the UK leaves the EU.
Whilst no-one knows quite how immigration legislation will play out in the coming months, there are some simple steps you could take which may help you to prepare! Getting your employment records in order and making sure your on-boarding teams have the very best tools to face any future changes will help to keep your business compliant come what may!
Tony Machin, CEO
Our CEO since 2013 has led our business through a program of significant upgrades in technology and services and has huge experience helping businesses introduce the right processes for identity document checks.
Want some further advice?
If you’d like some advice about preparing your Right to Work checks pre- or post-Brexit, please get in touch. We’d be happy to help!
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