From 1st July 2021 the checks that employers have to complete to ensure that employees have the right to work in the UK will change.
What you need to know
This new Government Code affects all employers. We asked Emma Bagshaw, Consultant Senior Solicitor at Seabury Legal Ltd, to explain the changes.
The Home Office has released a draft of the new Code of Practice on Preventing Illegal Working (the ‘Code’). The new guidance will come into effect on 1 July 2021 for right to work checks (‘RTW checks’).
Some things to note
- The Code of Practice is not the full employer guidance – we are waiting for this to be released.
- The Guidance will hopefully answer a number of ambiguities around the documents which qualify as List A or List B. I’ll be producing a further update when the guidance is released.
When will employers need to start completing the updated RTW checks?
The Code says that the new List A and List B should be used from 1 July 2021.
The question that follows is…
Do you need to re-check individuals who start employment on/after 1 July 2021 who have been RTW checked prior to this date? For example, you accepted an EEA national passport on 30 June 2021 for someone starting on 1 July 2021?
The answer appears to be no. The Code only refers to checks being completed from 1 July 2021 and not the date of employment.
What has not changed?
The actual process of a RTW check has not changed (although we await further information in the new guidance). Employers will continue to either carry out an online or manual right to work check. The manual check remains a 3 stage process.
The new List A and List B also provides that some expired documents can be accepted eg British and Irish passports.
What has changed?
The new List A and List B has changed significantly and will appear quite alien to HR Professionals and managers. Job applicants may also be confused!
The list can be found on pages 11-13 of the new Code of Practice. The list has expanded from 17 items to 21 items. The changes are summarised below. The full published list uses much longer descriptions of the items.
List A contains documents which prove that someone can work in the UK indefinitely.
List B (Group 1)
List B contains documents which only allow work for a limited period. Group 1 documents provide evidence of right to work until they expire. Group 2 documents only last for 6 months.
List B (Group 2)
At the moment, there are a number of ‘documents’ where we need clarification as to what is acceptable. This document could be a Residence Card, but we need further confirmation. These documents have been marked with italics in the lists above. We anticipate this clarification being in the Home Office guidance document.
What are the biggest changes for managers and those involved in recruitment?
- The new documents that could be presented as evidence of RTW. In reality, managers will be presented with a share code allowing them to complete an online check, visa or a passport. Also, applicants are going to be confused!
- There is a lot of ‘technical’ vocabulary and jargon in the list. Managers are likely to be confused. The risk that runs with confusion is that a fraudulent document is accepted.
- Managers are going to be completing many more online checks. Online checks have been available since 2019, but most managers would have been completing manual checks using passports. There are going to be risks if managers are not educated fully on how to complete an online check.
Advice for Recruitment Teams
- Get your List A and List B documents amended. Remember that most candidates will present a passport, birth certificate, share code or visa.
- Be prepared for the new guidance to be released.
- Think about how you will update managers on the changes and prepare them for completing more online checks.
- If you have been completing adjusted COVID-19 checks, make sure your paperwork is complete. Have you noted on the documents received that “an adjusted check” has been undertaken due to COVID-19? The new guidance states the importance of this note. The adjusted check process is due to close on 20 June 2021, but this is likely to be extended.
Emma Bagshaw is developing a number of resources to help educate managers and those involved in recruitment on the changes to this important aspect of employment law.
If you would like more information about these, or would like any additional support, please get in touch with our advice team.