Right to Work Policy

Under the Immigration, Asylum and Nationality Act 2006, it is a civil offence to employ an individual without the right to work in the UK. It is a criminal offence to knowingly employ, or have reasonable cause to believe you are employing, an illegal worker.

Failure to conduct proper Right to Work (RTW) checks can result in severe penalties for Brity:

• Civil Penalties: If Brity employs an illegal worker and cannot demonstrate that it carried out the prescribed checks correctly (thereby establishing a 'statutory excuse'), it faces a civil penalty of up to £45,000 per illegal worker for repeat offences, and up to £20,000 for a first offence (rates as of February 2024).
• Criminal Prosecution: Knowingly employing an illegal worker can lead to a criminal conviction, with a maximum prison sentence of five years and/or an unlimited fine.
• Director Liability: Directors and senior managers can be held personally liable for breaches.
• Licensing Implications: As a training provider, non-compliance could jeopardise Brity's standing with regulatory bodies such as HSE, CITB, and Ofqual awarding bodies, and may impact our ability to hold sponsor licences or other necessary permits.
• Reputational Damage: Significant damage to Brity's reputation as a responsible employer and training provider.

A 'statutory excuse' is a defence against a civil penalty. It is established by correctly carrying out the prescribed RTW checks before employment commences and retaining the required records.

All Right to Work checks must be conducted and completed before the individual's first day of paid employment or engagement with Brity. There are no exceptions to this requirement.

• No Retrospective Checks: A check conducted after employment has started does not provide a statutory excuse for the period prior to the check.
• Previous Employment: Even if an individual has previously worked for Brity or another UK employer, a new, compliant RTW check must be performed for each new period of employment or engagement.
• National Insurance Number: Possession of a National Insurance number does not, in itself, confirm a right to work in the UK. A full RTW check is still required.

Failure to complete the check before the start date means Brity is immediately exposed to civil penalties from day one of employment.

No individual may commence employment without written confirmation from HR that a compliant Right to Work check has been completed and recorded.

All Right to Work checks will be conducted consistently for every individual, regardless of nationality, ethnicity, or perceived immigration status. Brity will not discriminate or selectively conduct checks based on appearance, accent, or background.

Online checks are mandatory for individuals who hold:

• An eVisa (digital immigration status).
• A Biometric Residence Permit (BRP) or Biometric Residence Card (BRC) and are transitioning to an eVisa.
• Status under the EU Settlement Scheme (Settled or Pre-Settled Status).

These individuals will not have physical documents to prove their Right to Work and must provide a share code.

IDVT can only be used for individuals who hold a valid British or Irish passport (or Irish passport card). It cannot be used for:

• Individuals with a visa or other time-limited immigration permission.
• Individuals with EU Settlement Scheme status (these require an online share code check).
• Any other nationality.

If Brity chooses to use an IDSP, it must ensure the provider is certified against government standards (Digital Identity and Attributes Trust Framework). The digital check, when correctly performed by a certified IDSP, provides a statutory excuse and replaces the need for a manual check.

The IDSP will verify the identity of the individual and the authenticity of their document. Brity will receive a report from the IDSP confirming the outcome of the check, which must be retained as proof of the Right to Work check.

• Scheduling: HR will establish a robust system to track expiry dates of time-limited Right to Work permissions and schedule follow-up checks well in advance (e.g., 6-8 weeks before expiry).
• Process: The follow-up check must be conducted using the same prescribed methods as the initial check (manual or online, as appropriate for the new documentation).
• Documentation: The new documents and the date of the follow-up check must be recorded and retained in the same manner as the initial check.
• Cessation of Work: If an individual cannot provide evidence of continued Right to Work by the expiry date of their current permission, their employment must cease immediately. Continuing to employ them without a valid statutory excuse will result in Brity being liable for civil penalties.
• Loss of Statutory Excuse: Failure to conduct a compliant follow-up check before the expiry date means Brity loses its statutory excuse from the point of expiry, making the organisation liable for penalties if the individual continues to work illegally.

• No Defence: A retrospective check does not provide a statutory excuse for the period of employment prior to the check. If a compliant check was missed before the individual's first day, Brity is exposed to civil penalties from day one of their employment.
• Immediate Action: If it is discovered that a Right to Work check was not performed or was performed incorrectly before an individual started work, the check must be conducted immediately and correctly.
• Document the Gap: All details of the oversight, including the date the error was identified and the date the check was subsequently completed, must be thoroughly documented and retained.
• Escalation: Any instance of a missed or non-compliant pre-employment Right to Work check must be immediately escalated to the CEO and Brity's legal adviser for guidance.
• Suspicion of Illegal Working: If the retrospective check reveals that the individual does not, in fact, have the right to work, or if there is reasonable cause to suspect illegal working, Brity has a legal obligation to report this to the Home Office. This must be handled with extreme care and in consultation with legal counsel, The matter must be handled sensitively and in consultation with HR and legal advisers. Discussions with the individual must be carefully managed to avoid tipping off where criminal investigation may arise.

• A clear, legible copy (scan or photograph) of every original document checked.
• The date the check was made, clearly written on the copy or associated digital file.
• The name of the person who conducted the check.

• A clear, legible copy (PDF or screenshot) of the entire 'profile page' from the Home Office online service, showing the individual's photo, details, Right to Work status, any restrictions, and the date of the check.
• The name of the person who conducted the check.

All Right to Work records must be retained for the entire duration of the individual's employment with Brity, plus an additional two years after their employment ends.

• Records will be stored securely within the individual's HR file in Brity's encrypted HR system. The corresponding check will be recorded on the Single Central Record.
• Access to these records is strictly limited to authorised HR personnel and senior management on a need-to-know basis, in compliance with Brity's Data Protection Policy and Employee Privacy Notice.
• Records must be readily retrievable for inspection by the Home Office upon request.

• Organisational Risk: Failure to conduct compliant Right to Work checks exposes Brity to significant civil penalties (up to £45,000 per illegal worker), criminal prosecution (up to 5 years imprisonment for knowingly employing an illegal worker), and severe reputational damage.
• Staff Disciplinary Action: Any Brity staff member who fails to adhere to the procedures outlined in this policy, or who knowingly disregards their responsibilities, will be subject to disciplinary action, up to and including dismissal, under Brity's Disciplinary and Grievance Policy.
• Suspicion of Illegal Working: If any Brity staff member has reasonable cause to suspect that an individual is working illegally, they must immediately report their concerns to HR. This information must be treated with the utmost confidentiality and The matter must be handled sensitively and in consultation with HR and legal advisers. Discussions with the individual must be carefully managed to avoid tipping off where criminal investigation may arise. HR will escalate the matter to senior management and seek legal advice as appropriate, potentially involving a referral to the Home Office.