• Barnett Waddingham
    Barnett Waddingham
  • GUEST BLOG: Are you relying on your ATS for Right to Work compliance?

    By Mark Andrews, MD at Rightcheck.io

    Automated Tracking Systems (ATS) can help streamline the recruitment and on-boarding process. But be careful, reliance on these systems to undertake Right to Work checks can lead to non-compliance. The temptation to short-cut, or outsource ‘Right to Work’ checks when using an ATS has led to some companies being unable to establish a ‘statutory excuse’ when inspected.

    These systems are great at automation and self-service tasks, for example getting the candidate to ‘upload’ documents and input details directly. The problem is that when you mix Right to Work legislation with self-service or 3rd parties you can easily contravene Home Office regulations. The growing list of businesses, including major brands, that have received civil penalties from the Home Office emphasises the risk and we would urge organisations to review how their ATS is being used to facilitate these vital checks.

    Right to Work checks are mandatory for all organisations and it is a legal requirement that they are undertaken for every recruit. Critically the checks must be performed (i) prior to commencing employment, (ii) by the employer i.e. not a 3rd party background screening company and (iii) in strict accordance with a prescribed process.

    For HR teams one of the greatest risks (to career and brand) is inadvertently hiring illegal workers. The repercussions for the organisation and reputational damage arising can be severe. There are civil penalties (maximum of £20,000 for each illegal worker) and criminal offences that can arise from a breach of the legislation. Civil Penalties issued to UK businesses, including major brands, are rising. In 2016 they ran at a rate of over £40M per annum – proof of the Home Office declaration to ‘get tough’ on any organisation failing to comply with Right to Work legislation. Combined with an active policy by the Home Office to ‘name and shame’ non-compliant businesses, there is a clear case to ensure recruitment processes are robust and rigorously adhered to when conducting Right to Work checks.

    With regards to ATS, there are 3 key issues to look out for:

    1. Allowing candidates to upload their own right to work documentation using the ATS ‘self-service’ feature. In an effort to save time, some companies are enabling candidates to themselves upload copies of ID documentation onto the companies ATS prior to interview. These copies are then used to compare with the originals documents at interview stage, or in some cases once employed. Uploading scans of a candidate’s ID documents into the ATS by the candidate as part of the application process, or by the recruiting manager as part of the on-boarding process, does not constitute a compliant Right to Work check and creates exposure: Explaining to a Home Office immigration officer that your process for Right to Works checks is robust when you are reliant on the candidate to upload their own (or someone else’s) fake, forged or imposter documents will be difficult. At best this approach helps identify the candidate has some ID documentation. However, you should not involve these scans/copies in your Right to Work check, you still need to conduct a fully compliant check at some stage prior to commencement of employment.

    2. Using a third-party provider to validate documents from your ATS on your behalf, in effect ‘outsourcing’ the task of checking that a candidate has a Right to Work pre-interview. This is a waste of effort/money, firstly the Home Office regulations are clear: “You are unable to establish a statutory excuse when the check is performed by a third party” and “You may not delegate this task to a third party”. Secondly this validation check is being performed remotely, usually without the employer copying the original documents (see issue 1) or the candidate being in front of them – both aspects rendering the check invalid. Only the employer can undertake a right to work check. If you involve a 3rd party in the process you risk confusing the issue and you still need to run a fully compliant check prior to employment.

    3. Convincing yourself that you have carried out the specific Right to Work check tasks of OBTAIN, CHECK, COPY using your ATS. However, in reality you will have short-cut the Home Office regulations and guidance. An assessment of what ID documentation is acceptable, based on candidate’s profile/circumstances, has not been undertaken and once again the organisation is exposed. Ensuring that for this aspect of the recruitment and on boarding workflow you do not deviate from the rules is critical – as Home Office guidance states:

     “If you carry out document checks as set out in this guide, you will have a statutory excuse against liability for a civil penalty. This means that if we find that you have employed someone who does not have the right to work, but you have correctly conducted document checks as required, you will not receive a civil penalty for that illegal worker.”

    Should you have any concerns about your ATS in relation to Right to Work checks please contact us. We can help overcome some of the pitfalls and have assisted several organisations by introducing Rightcheck to work in conjunction with their ATS. The ATS still handles the recruitment process workflow, with Rightcheck providing the all-important Right to Work validation as part of the workflow. Implementation is straightforward and the result is a recruitment and on-boarding process that is not only streamlined but vitally is compliant with this all-important aspect of employment legislation.

    Rightcheck is a mobile App and cloud Management Portal that steers recruiters through a fully compliant Right to Work check. Automatic regulation update, powered by KPMG Expertise, are built-in and Rightcheck will work in conjunction with your ATS/HR system or standalone. Adopting Rightcheck can provide you with control and real-time visibility of every Right to Work check across your business.


    Stuart O'Brien

    All stories by: Stuart O'Brien

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