Since 1997, employers in the UK have been obliged to check the immigration status of prospective candidates through a simple Right To Work (RTW) check. RTW checks are an essential part of compliance and a key instrument to prevent illegal immigration, avoid labour exploitation and ensure workers’ rights are preserved.
According to the government’s guidance for employers:
You should conduct a right to work check before you employ a person to ensure they are legally allowed to do the work in question for you. If an individual’s right to work is time limited, you should conduct a follow-up check shortly before it is due to come to an end.
There are two types of right to work checks; a manual check and an online check. Conducting either the manual check or the online check as set out in this guidance and in the Code of Practice will provide you with a statutory excuse.
Previously RTW checks for citizens of countries in the European Economic Area (EEA) consisted of checking a passport or national ID card. However, since the system of freedom of movement came to an end on 31 December 2020, an extra layer of complication has been added to an otherwise uncomplicated system.
With the end of free movement, only EEA citizens who were living in the UK before 31 December 2020 have the right to work in the UK by virtue of their EU nationality. Their right to live and work in the UK is protected by legislation and there is now a grace period, lasting from 1 January to 30 June 2021, during which they must apply for the EU Settlement Scheme and secure their leave to remain. Meanwhile, anyone arriving in the UK after 1 January 2021, whether from the EEA or from somewhere else, now has to apply for a visa.
Time is running out
We are almost halfway through the grace period, and these are likely to be the final months when a passport or ID can be used as proof of RTW for Europeans. But for employers there is an added complication – they cannot ask about a candidate’s settlement status while recruiting during the grace period. This means firms will not be able to differentiate between EEA citizens who can work in the UK legally (those were resident in the UK before the end of the transition period) and those who cannot.
Because of this complication, risk averse employers might be tempted to deny employment to EEA citizens to avoid the risk of potentially employing someone with no right to work. But they should be warned. Although having the right to work in the UK is required by law, the Equality Act 2010 states that employers should not make hiring decisions or have selection processes that could potentially give rise to unlawful racial discrimination. Government has also warned employers about discriminating against EEA citizens.
Luckily, employers do not need to worry as the Home Office has confirmed that they have no intention of prosecuting businesses who have wrongly employed EEA citizens in good faith, provided they have followed the outlined RTW process. The Home Office has also confirmed that employers will not be required to carry out retrospective checks on EEA citizens who were employed on or before 30 June 2021, regardless of the document used as proof of RTW (which could either be a passport/ID or the Home Office online service tool).
The EU Settlement Scheme is already fully digital and this is likely to inform a significant part of RTW checks in the future. The REC has been urging the Home Office to move away from a physical check to a digital/online check. Digital checks would allow all businesses, not just those in the recruitment industry, to have a more efficient recruitment process and allow people to return to work more quickly. This is now even more important than ever with the increasing levels of unemployment in the UK due to the pandemic. The temporary digital checks have worked without issue during the last year – there is no reason why this could not remain in place in the long term.
Employment businesses and RTW
As we have seen, the end of the Brexit transition period has already had a significant impact on RTW checks as an essential part of compliance. But, as is often the case, a lack of understanding of the supply chain policy makers can lead to even more confusion, especially where recruitment agencies are involved. Recruitment agencies employing temporary workers are responsible for carrying out the checks for the workers they supply to their clients.
Previously, government guidance said that a new RTW check was necessary every time an individual started a ‘new job’. For permanent employees, there is a clear line between different jobs, and a check would only be necessary every once in a while. But for recruitment agencies and their temporary workers, who may perform several different temporary assignments for different employment businesses in a short period of time, that is not the case.
This guidance has now been updated and establishes that:
Where temporary or agency workers are supplied by an employment business or recruitment agency, the right to work check will be completed when the employee registers with the business / agency. We recommend that organisations consider their specific activities and determine whether followup checks are appropriate to ensure individuals continue to have a right to work, in circumstances where the individual enters a new job, changes role or undertakes a new assignment after 30 June 2021.
This is a welcome change. For agency workers and other temporary workers who work via an employment business, the term ‘new job’ is not clearly defined – if it was interpreted to mean every new assignment that a worker does, then this would mean that employment businesses would need to conduct thousands of checks, including multiple checks a week for some candidates. This is simply not a manageable requirement and would prevent recruiters from providing their service efficiently or at short notice due to the burden of having to continually recheck documents.
Understanding that is essential for a workable approach to RTW, especially as the right to work is no longer a guarantee for every EEA citizen in the UK. The REC will be asking for further clarifications around the follow-up checks suggested, as it’s not feasible to repeat checks every time a worker is assigned to a new client or even moves within the same client. However, it is good to see that government is open to changing their guidance with recruitment businesses and temporary workers in mind.
