Update | Bates Wells recognises challenges faced by transgender employees when seeking to evidence a right to work

We have been working to persuade UK Visas and Immigration (UKVI) to close a gap in their guidance for employers who wish to employ someone who has recently changed gender. More than a year and a half on from our first post on this topic, here’s an update on where we are.

What are right to work checks? And where does gender come in?

An employer is required to carry out right to work checks for any new employee or for an existing employee on a time bound visa before the expiry of that visa.

The current UK guidance sets out how to carry out the right to work checks. These are usually done manually, online or via an IDSP.  However, there is a gap in the published guidance for individuals who are transitioning to another gender and unable to provide documents in line with their new gender. There was also some inconsistency in respect of retaining and/or disclosing relevant right to work documents.

We have been actively asking the UKVI to clarify the position and amend their guidance to ensure that employers and employees are not impacted by this gap. We have managed to gain clarity on some of the issues employers can face, set out below.

Documents: What’s expected?

Under the current UKVI policy, employers carrying out manual right to work checks should ensure that they have checked and taken copies of the appropriate documents as stated in the right to work guidance to establish their excuse against a civil penalty.

UKVI policy states that that if an employer has reason to believe the person represented on said document does not appear to be the same person (for example, following a name change) then the employer should satisfy themselves of the reason for discrepancy, and retain evidence of how they satisfied themselves. In the case of change of name, this could be shown by a certificate of deed poll.

However, if the discrepancy related to a different detail, such as the gender marker, there is no confirmation for employers on what is expected from them. Changing gender markers on documents can be a long process and may not happen across all documents at the same time.

Additionally, the guidance does not clarify what to do if the photographs of an employee are not consistent across the checked documents, or with their current appearance. This issue applies to online right to work checks as well, as an individual may be transitioning socially and therefore their appearance may be very different to that of the photograph on the online check.

When we contacted the UKVI to seek clarity they stated that they do not prescribe the documents which may be accepted in such cases. The UKVI have indicated that ideally, transgender candidates should have access to a nominated person in HR who is knowledgeable and available to deal with the documentation sensitively. This involves retaining only what is needed, ensuring that the data is held securely and that there is no informal sharing of this information as this could be unlawful.

Disclosure

It is worth noting that the Gender Recognition Act 2004 (‘GRA’) only applies to individuals who hold a Gender Recognition Certificate (‘GRC’) and may not apply to those who have just begun the process of changing their gender. A GRC can take time to obtain and not all transgender individuals qualify for one.

UKVI have confirmed that for individuals who have a GRC, employers are permitted to hold the relevant right to work documentation which may reflect the individual’s previous gender. However, employers cannot disclose this information to any third party unless an exception under the GRA applies. We understand from UKVI that a UKVI official requesting evidence of an individual’s right to work would fall within an exception under the GRA.

What are we doing about this?

We wish to assist our clients with protecting their position as well as safeguarding and promoting inclusion for any transgender staff members.

We are continuing to challenge UKVI on the gaps in their guidance and insist right to work policy is changed to prevent employees from being discriminated.  

At Bates Wells, we see it as vital to act as an LGBT+ ally. Read more about how we can help businesses and individuals on our LGBT+ service page.