Right to Work check expansion

These changes would significantly increase the number of Right to Work checks that an organisation must perform, along with raising the risk of facing civil penalties.

The consultation also outlines the possibility that Digital Verification Service (DVS) checks will become mandatory for British and Irish employees. Completing a DVS check would likely mean using Identity Document Validation Technology (IDVT) delivered by a certified Identity Service Provider (IDSP) to verify British and Irish citizens who hold a valid passport or Irish passport card. When conducted correctly, a digital check establishes a statutory excuse against civil liability if an individual is later found to be working illegally.

This would mean an increased cost to the employer for using an IDSP service if they are not doing so already and the liability is not transferred from the employer to the IDSP. The employer would still be required to confirm the likeness of the individual, and the evidence of the check has been retained as required by law.
 

What do the proposals cover?

The proposals to expand Right to Work checks include the following alternative working arrangements: 

A worker’s contract, such as an off-payroll worker to provide services to your business either for or on its behalf to another party.

In this instance a potential civil penalty would apply where there is a contract for services under which the worker personally performs work or services for the business, and they have not had a Right to Work check completed prior to commencing work.  

This change would not apply to self-employment cases such as hiring a cleaner or a plumber to work in your home.
 

Subcontracting either through an organisation or an individual as a sub-contractor.

In this instance where your business has engaged a sub-contractor to provide services on your behalf, a Right to Work check for each individual providing the services would need to have taken place prior to the date on which the contract for services commences.    

For industries which depend extensively on subcontractors, there would be a significant impact on the time and cost involved in the completion of Right to Work checks.  

It will be essential for businesses sub-contracting work to ensure that contracts between the two parties clarify that the responsibility for Right to Work checks falls with the Sub- Contractor.
 

Online matching where an online matching service provides details of individual service providers to potential clients of customers.

This would apply to digital technology platforms like Deliveroo or UberEATS which connect service providers with their customers.   This will likely mean that the matching service will need to ensure that all individuals which who provide services to clients or customers for remuneration will require a Right to Work check prior to commencing delivering the services.  

What are the implications

For many organisations, existing practices and processes for onboarding are likely to be initially impacted operationally rather than legally. Current processes will include the completion of checks for employees but will need to extend across all engagements that the business has including agency workers, consultants, freelancers, sub-contractors and digital platform users.

Key areas to consider will include:  

1. Broader due-diligence – Employers will need to map their entire organisation and workforce at every point where work is performed and identify those individuals that are engaged for services and will require Right to Work checks.

2. Clarity on terms between businesses and intermediaries or platforms that outline the responsibility for checks, and which element falls with each party.

3. Increased compliance costs and process review for onboarding to ensure that records are kept correctly with the required evidence of monitoring Right to Work evidence.   It is also likely that training on completing checks will need to extend beyond HR and include operations, procurement and anyone involved in engaging labour.
    

Recommended actions 

Forward thinking businesses should begin preparing for the expanded Right to Work checks where they engage anyone outside of a classic contract of employment. 

Review contracts for agencies, sub-contractors and platform agreements to allocate responsibility and provide evidence of compliance that Right to Work checks are completed.