Right to work checks using
an Identity Service
3 November 2022
The COVID-19 pandemic has led to a significant uptake in the number of businesses operating with a fully remote workforce. Such working arrangements can help to boost an employer’s appeal to a wider range of job candidates, owing to the allure of no commute and the flexibility to ‘work from anywhere’. However, employers operating a partially or fully remote workforce must ensure they have the appropriate processes in place to comply with their legal obligation to carry out compliant right to work checks on their employees.
Temporary COVID-19 concessions which enabled employers to conduct remote right to work checks using scanned copies or photographs of documents have now ended, and from 1 October 2022 employers must revert to checking original documents. Many businesses with remote workforces are therefore looking for solutions to conduct these checks on workers who do not physically attend an office and so cannot bring a passport in to be checked by HR in person.
In response to this demand, the Home Office recently introduced a new option to help facilitate remote right to work checks. Employers can now use a certified Identity Service Provider (IDSP) to verify the validity of an employee’s identity document without having to physically examine it.
However, the new service is not a ‘wonder cure’ for employers and there are strict limitations on who can use the service, meaning it will not be suitable for everyone. Critically, employers must still take responsibility for ensuring a compliant right to work check has taken place and will need to conduct their own checks after the IDSP returns their verdict. We explain more below.
What is an Identity Service Provider (IDSP)?
Since 6 April 2022, employers have been able to make use of new technology known as Identity Document Validation Technology (IDVT) to carry out the digital identity verification element of right to work checks for some British and Irish citizens. The checks are carried out via the services of certified Identity Service Providers (IDSPs).
The technology allows IDSPs to verify the identity of a person by obtaining a digital copy of a physical document, checking that it is valid and that it rightfully belongs to the person who is claiming it. The process works by inviting the individual to upload a copy of their passport or passport card along with an image of themselves to the IDSP’s app or portal. The IDSP will then check the authenticity of the document and provide a report to the employer.
Who can use an IDSP?
The services of an IDSP can only be used for individuals who hold a valid British or Irish passport, or an Irish passport card. If the worker’s passport is not valid (i.e. it has expired), an IDSP cannot be used.
Employers must not treat less favourably those who do not hold a valid passport, or do not wish to prove their identity using an IDSP. You must provide individuals with other ways to prove their right to work and should carry out a manual document-based right to work check in these circumstances.
For individuals not eligible to use the service, the employer must conduct a manual right to work check using original documents, or conduct an online check.
Steps for carrying out a right to work check using an IDSP
Basic steps for carrying out a right to work check using an IDSP are as follows:
- Establish eligibility – Confirm that the prospective employee holds a valid British or Irish passport, or an Irish passport card.
- Choose a provider – IDSPs can carry out digital identity verification to a range of standards or levels of confidence. The Home Office recommends that employers only accept checks via an IDSP that satisfies at least a Medium Level of Confidence. A list of certified IDSPs for employers to choose from is published on the GOV.UK website here. Employers interested in procuring the services of an IDSP should engage directly with those providers on the list.
- Check the result – Satisfy yourself that the photograph and biographic details (such as date of birth) on the output from the IDVT check are consistent with the individual presenting themselves for work (i.e. the information provided by the check relates to the individual and they are not an imposter).
- Make a record – You must retain a clear copy of the output from the IDVT identity check for the duration of employment and for two years after employment has ended.
How to establish a statutory excuse
Carrying out a compliant right to work check provides your business with a statutory excuse and protects you against liability for a civil penalty if that person is later found to be working for you illegally. It is important to note that despite utilising the services of a certified IDSP, the responsibility for ensuring compliant right to work checks have been carried out remains with the employer, and this obligation cannot be passed onto the IDSP.
Employers making use of the new digital checks will only establish a statutory excuse if they reasonably believe that the IDSP check has been carried out correctly and in accordance with the Home Office guidance.
Critically, employers will need to perform an ‘imposter’ or ‘day-one’ check on the employee’s first day of work, to ensure the person turning up for work is the person they carried out the right to work check on. Using the services of an IDSP does not change the requirement for this check to be carried out. This can be done via a video call or in person when the individual attends work. It is for the employer to decide upon the most appropriate manner for this to be carried out.
Although it is not mandatory, the Home Office recommends employers use a certified provider and ensure their staff receive training and guidance on what information they must obtain from an IDSP to confirm verification of identity, what the information can be used for, and the additional steps they must take to establish eligibility to work.
How much does it cost?
IDSPs will charge a fee to carry out the identity checks. The cost varies between providers, with some offering pre-paid ‘bundles’ of credits which expire after a certain period of time. For this reason, employers should carefully research costs and consider how often they may need to use the service before committing.
What are the benefits of using an IDSP vs a manual check?
With the prevalence of remote working on the rise, the Home Office is under pressure to provide new digital solutions such as IDVT to allow employers to comply with their legal obligations. Such technology also benefits the Home Office in helping to rule out counterfeit documents.
However, employers may need more incentive from the Home Office to adopt the widespread use of IDSPs. Owing to the fact that the service can currently only be used for British and Irish nationals with a valid passport, and the fact that employers still need to conduct an imposter check afterwards, the benefits to employers are minimal.
The service in its current form could work for certain organisations however, such as those with a virtual business model wishing to avoid the need for new employees to post their passports to the home address of the person conducting the check, which some workers may be reluctant to agree to.
Help with conducting compliant right to work checks
Right to work checks are an essential requirement for all UK employers – they are not optional. Employers can face a civil penalty of up to £20,000 for each illegally employed worker who does not have the right to work in the UK, and where correct right to work checks were not undertaken. Businesses could also lose the ability to sponsor foreign nationals on work visas and even face criminal convictions if they do not comply with the guidelines.
If you have any questions about using an IDSP or on any other aspect of right to work checks, please contact us today.