Right to Work update for HR and global mobility professionals

As many HR and global mobility professionals may know, the Home Office frequently updates its guidance and it’s always a good prompt to refresh your knowledge. You may have seen the recently updated guidance on right to work checks. I know the last thing anyone sitting in HR or global mobility wants or has time to do, is read the 40 page document cover to cover. So the most significant changes include:

• Employers should contact the Employers Checking Service (ECS) if a prospective employee presents you with information indicating they are a non-EEA national who has been a long-term lawful resident in the UK since 1988, but does not possess acceptable right to work documentation. The ECS team will then contact the employee to resolve their status and also issue you with a Positive Verification Notice (PVN) confirming the individual is allowed to work;
• Follow up checks on existing employees are only required where the person has a time-limited immigration status. They have also confirmed that you are not required to take action now to conduct a check in respect of a period of continuous employment that commenced before 29 February 2008;
• Clarification that there is a grace period of 60 days in all cases of Transfer of Undertakings (Protection of Employment) transfers;
• Ending restrictions on the employment of Croatian nationals with effect from 1 July 2018.

Most of the changes are clarifications of the existing guidance that really needed bedding down – a very welcome update to help employers with a workforce that includes members of the Windrush generation, for example. With that in mind, it’s always useful to have a refresher on what is expected of you as an employer in conducting right to work checks.

We are often contacted by employers who are either currently falling short on ensuring right to work checks are carried out properly and promptly, or those that want to get started in the right way. Our advice is that it’s all to do with habits and consistency. Once you know what is required of you, it’s about applying it in practice, making it a habit and applying it consistently. So, what follows is a step by step guide to remaining compliant:

1. Obtain the original documents - You need to see these documents with your own eyes. It’s not good enough for the employee to email you a scanned copy and that certainly won’t save you in a Home Office audit. A common question I’m asked is, “Can I carry out a check via Skype?” The answer is no and the reason should be self-explanatory!
    
2. Check the documents in the presence of the owner – Following on from point 1 – the documents should be presented to you by the owner, in person. You should be satisfied that the passport is authentic. No one expects you to be a master at detecting fraudulent documents but you should feel comfortable that the documents don’t look like they have been tampered with.
    
3. Make a clear, secure copy of the documents – photocopy them yourself. Once you’ve made the copy, you should sign it and date it. It is then up to you to retain the document however you see fit. Most commonly, the signed copies are scanned and saved as PDFs on the employees file. If you retain your documents in hard copy, that’s okay too.

Worth noting, as this is something I’ve been asked numerous times, is that checks should be carried out on every single employee, whether British, European or otherwise.

Sometimes the issues we see aren’t with the quality of the checks, but with the timing. Carrying out a check 2 weeks or even 2 days into the employment means you are in breach of your duties as an employer. The checks should be carried out before the employee starts work, not the day after, or a few hours into the role. In an ideal world the check would take place at least a week before the employee shows up to their first day at work. What’s most common is that the employee reports to the HR team to have the checks carried out first thing in the morning before they get to their desk. So if usual start time is 9:30am, perhaps ask them to come in for 9 to produce their documents. Follow up checks are also required for anyone with a time limited visa, so you should be making a note of visa expiries too.

This is just a small piece of the pie when looking at compliance! At Kingsley Napley we offer mock audits and compliance visits to help you get into shape in case the Home Office show up one day. If you feel that your files could do with a spring clean, get in touch.