Update on digital identity checks for right to work purposes

Digital right to work checks have been in place since the beginning of the pandemic. This has not only made it easier when face-to-face meetings have not been possible but has also enabled candidates to get into work more quickly while ensuring compliance.

At TPP, we support many temporary workers, so we have supported the REC's campaign for this to remain in place permanently. The government has announced that this will now be implemented permanently from 1 October 2022.

Lewina Farrell, TPP's Legal Manager, has provided an update on what these new digital checks mean for employers.

Employers' Responsibilities

Employers and recruiters must ensure that all employees and temporary workers have the right to work (RTW) in the UK. They can do this by checking from a list of acceptable documents, and these checks can be done manually or digitally.

The check must be done correctly, and records must be kept to rely on the "statutory excuse" – proof that the employer has taken the correct steps to protect themselves against employing an illegal worker. Even if a worker does not have the right to work in the UK, an employer will not receive a civil penalty (a fine of up to £20,000 per illegal worker) if they can rely on the statutory excuse.

What's happening?

Employers and recruiters can check non-UK and non-Irish nationals' RTW using the Home Office's free online "view a job applicant's right to work details" service. Currently, they cannot use the digital service for British or Irish nationals. However, from 1 October 2022, employers and recruiters will be able to carry out digital identity checks on British and Irish nationals for the purposes of right to work checks.

Employers and recruiters will still be able to do manual checks if they wish. However, when doing digital right to work checks from 1 October 2022, they will have to:

• Use a certified Identity Service Provider (IDSP) to validate an individual's identity documents to confirm their right to work in the UK
• Provide appropriate training and guidance to their staff on how to use an IDSP
• Comply with the Home Office's RTW complete identity evidence verification criteria and wider RTW requirements

This change will be backed up by the UK Digital Identity and Attributes Trust Framework (UKDIATF), which will set out the conditions for certification of IDSPs. The government hasn't published the list of certification bodies yet, and the UKDIATF is still in the "alpha" phase and will not move to the live phase until the legislation setting out the changes is effective.

IDSPs will be certified against the version of the UKDIATF in place at the time of their certification. They must meet the technological conditions for certification and have appropriate information security systems in place to protect the personal data they process. IDSPs will be audited annually and will have to undergo recertification every two years.

Risk and Liability

It is expected that digital checks will increase the security of identity and RTW checks. However, the responsibility for making the check remains with the employer (or recruiter for temporary workers), and they must ensure that their chosen IDSP complies with the specifications, including the Level of Confidence (LOC).

When using an IDSP, an employer will be a "relying party" – relying on the IDSP to do the check to the required standard. Employers will obtain the necessary statutory excuse only if they use a certified IDSP. They will not have the statutory excuse if they use a non-certified IDSP. Therefore, when signing up to an IDSP's service, employers should check the risk and liability and indemnity clauses.

Cost

IDSPs will be able to charge for their services, but the charges are yet to be determined. Charging for checks on UK and Irish nationals is in contrast to the free digital check when checking the status of non-UK and non-Irish nationals.

For more information, see Annex F of the Home Office's Employer Right to Work Checks supporting guidance.

No More Manual Checking

Also, from 1 October 2022, employers and recruiters will no longer be able to do manual checks of Biometric Residence Cards, Biometric Residence Permits, or Frontier Worker Permits. From that date, only digital checks will be valid.

TPP as an REC Audited Member

TPP is an REC audited member, so you can be assured that we have taken all measures possible to verify and check that temporary workers are fully compliant, such as reference checks, full registrations, and right to work checks.

• You can be confident you are using an REC Audited supplier
• They have gone the extra mile in levels of demonstrating compliance and work to best practice standards
• There are a host of additional checks they have undertaken to achieve the REC Audited mark of distinction
• They are helping to build the best recruitment industry in the world

For further recruitment advice, TPP has a range of resources available to support organizations through our Resources & Support Hub.

This article is for information purposes only and is not intended to replace formal legal advice.