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Can Employers Delegate Their Right to Work Check Responsibilities?

2 mins read 21/01/2025

Right to Work Checks: Can Employers Delegate their Legal Responsibilities?

All UK employers are legally required to conduct Right to Work Checks on all prospective and current employees, to verify that they have valid permission to work in the United Kingdom.

The Right to Work legislation is set out under Sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006 and is accompanied by detailed Home Office guidance which is updated in line with changes in the Immigration Rules.  Together, the rules and guidance detail the process employers must follow to establish a statutory excuse against a civil penalty, if an employee is found to be working illegally.

With the rise in various HR technology solutions available, it is important to understand, what responsibilities can and cannot be delegated to a third party.

Responsibilities Employers Can Delegate

  • The use of third-party Identity Service Providers (IDSPs) to complete the identity verification element of checks is permitted, but only for British and Irish citizens who hold a valid passport (including Irish passport cards). Please note that when using IDSP, you will remain liable for the civil penalty if the employee is found to be working illegally and the check has not been completed correctly.

The Home Office recommends employers use a certified IDSP. This will provide employers with the assurance that their chosen IDSP has been independently assessed as being capable of providing ID verification services and meets the standards set by the Department for Digital, Culture, Media and Sport’s (DCMS) Trust Framework.  However, regardless of whether the IDSP is certified, the responsibility for the check remains with the employer, who must ensure the IDSP they select carries out a prescribed check correctly prior to the commencement of employment.

Responsibilities Employers Cannot Delegate

  • Identity Verification:

    • Checks for non-British/Irish citizens using the online share code method or manual document checks. Whilst IDSPs can assist with fraud prevention in these circumstances, they cannot establish a statutory excuse against liability for penalties for immigration breaches. The right to work check itself cannot be delegated out.

    • Personal verification of documents to ensure:

      • The results of the check are consistent with the person presenting themselves for work;

      • The documents are valid and consistent. (e.g. photographs and dates of birth and names are matching across documents); and

      • Work eligibility specifics (e.g. the restrictions on the type or hours of work).

    • Following up on employees with limited-duration work rights to ensure timely follow up checks. 

  • Record Keeping and Due Diligence:

    • Retention of the copies of the validation results from the IDSP for compliance purposes;

    • Keeping accurate and legible records of the checks, including the date they were completed- conducted in line with the Home Office requirements;

    • Ensuring that the IDSP meets the standards set by the Department for Digital, Culture, Media and Sport’s (DCMS) Trust Framework;

    • Confirming that the IDSP’s identity verification aligns with scheme requirements.

Whilst there may be a few instances in which employers are permitted to delegate very limited right to work responsibilities, ultimately it is the employer that will remain liable for any civil penalty.  This is the main principle running throughout the guidance and therefore, as an employer, it is essential to understand your legal right to work responsibilities, including where these responsibilities can and cannot be delegated.

If you are considering using a new HR tool which offers help with right to work checks, please feel free to contact our team to see what additional measures may need to be put in place.

 

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