How to navigate the new right-to-work rules

LAURA CHAMBERS • 31 Oct 2022

1 - What does the new RTW legislation mean for recruiters?
2 - How does Identification Verification Technology work?
3 - What is a statutory excuse?
4 - Does a passport need to be in date?
5 - How do I carry a right-to-work check using an IVT?
6 - Does a physical right-to-work check still need to happen?
7 - Is it just passports? Or can other documentation be used?
8 - Can driver's licences be used?
9 - How will this work with my applicant tracking system?
10 - How do you promoted accessibility and inclusivity?

A lot of us were sent home during the pandemic, so it wasn’t possible to conduct Right-to-Work checks in person, which was the norm for most hiring professionals. Instead, new hires would need to flash their documentation virtually, either through photography or via face call.

This meant there was a statutory excuse for recruiters regarding Right-to-Work (RTW) checks, but it opened up the potential for fraud on behalf of employees that were joining an organisation. Without a robust RTW system in place, you could be open to a £20,000 fine if you fail to comply with the new legislation!

This situation has now changed. Behind the scenes, the home office, DBS, and the DCMS have been working on a digital solution that would make virtual checks a lot easier. This was fast-tracked during COVID, whereby certified Right-to-Work checks could be made without physically seeing a document.

See how we manage digital Right-to-Work checks

Essentially, the rules are reverting back to pre-pandemic expectations – but with a twist! So we sat down with John Mathews – Commercial Manager at Yoti – for a question and answer session on the new Right-to-Work rules. Yoti is a partner of Jobtrain and provide Identification Verification Technology. They’re a Digital ID company who have been well-established in this market for years, and the new rules have given them the chance to help their current customers strengthen their Right-to-Work checks.

What does the new Right-to-Work legislation mean for recruiters?

The government has said you can use a non-certified IVT company for your Right-to-Work checks, but has made it clear that this carries a risk. A certified IVT organisation will use robust technology that ensures you are protected as an employer from potential fraud.

How does Identification Verification Technology (IVT) work?

When a candidate uploads a copy of their passport, they have to take a “biometric selfie.” At Yoti, we use a combination of artificial intelligence and human checking. The AI can detect any signs of tampering on the document and it will check the machine-readable data in your passport chip to make sure it’s accurate and matches. It also does a face-match with the person that’s uploaded it to make sure that passport belongs to the same person. A lot happens in 8 years, and sometimes the human eye can’t tell with passport photos!

Following this, a human checker steps in as a failsafe to double check the AI’s calculations. This provides assurance that the employer is being compliant. This service gives you something called “a statutory excuse.”

What is a statutory excuse?

A statutory excuse is an employer’s defence against a civil penalty if an employee is found to be working illegally. An IVT provider will give you all of the evidence, including a breakdown of which checks were made, so you are legally secure.

Does a passport need to be in date?

Yes! It is a mandatory requirement. Those are the scheme rules.

How do I carry out a Right-to-Work check using an IVT?

I can only speak for Yoti, but we make sure it’s very easy. A candidate can take on a check using their webcam on a laptop, or through a mobile phone. Some IVTs – like Yoti – offer apps to download, which give you a reusable ID. This data is encrypted and stored in your phone. Others will be a browser-based solution. If you’ve ever signed up to a bank like Monzo, it’s a very similar process. It would take the average candidate 2-3 minutes.

Does a physical Right-to-Work check still need to happen?

Not if it’s being done through an IVT. If Yoti give you an assurance that a candidate has met the scheme requirements you don’t have to see a physical copy of the document. You only need to see a physical right-to-work check if we aren’t able to capture a copy of an in-date document. If that happens, we fall back to old rules – like checking birth certificates etc.

Is it just passports? Or can other documentation be used?

A mandatory requirement for a Right-to-Work check is an in-date UK or Irish passport. That’s simply because other documentation is easy to forge.

Can a driver's licence be used?

We would only accept driver’s licences if it was part of a DBS check. You can’t use a driver’s licence for right-to-work checks, but you can use it as proof of address for a DBS check. These are the scheme requirements set by the Home Office.

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How will this work with my applicant tracking system?

Let’s use Jobtrain and Yoti as an example!

From Jobtrain, you will be able to invite a prospective new-hire to complete a right-to-work check. An email will automatically go out from your ATS to invite a candidate to undertake the check. They will then go through the verification process with their passport and taking images of their face. Those checks are instantaneous unless some human intervention is required. Yoti then automatically notifies you through the Jobtrain ATS whether or not a right-to-work check has passed!

DBS checks are available within Jobtrain as well.

Not everybody can use technology like this. How do you promote accessibility and inclusivity?

We’ve partnered with the Post Office just over a year ago. At the moment you can do an in-branch verification with the Post Office, but only to a DBS level. It’s basically a scheme where a person has to select whatever documentation they can provide, they book into an appointment at a post office branch. It’s very important for me to highlight that this method is not allowed for right-to-work checks!

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