Since 30 March 2020, temporary COVID-19 adjusted measures have been in place for employers in relation to carrying out right to work checks. During this period employers have been permitted to carry out right to work checks over video calls, rather than in person, and they have been able to check scanned copies of documents, rather than originals. For more details on carrying out the COVID-19 adjusted checks, see our previous article.
However, the Home Office has announced that the adjustments will only remain in place until 16 May 2021.
This means that, from 17 May 2021, employers must carry out right to work checks in the standard prescribed manner in order to protect themselves against a possible civil penalty if an employee is found not to have the right to work in the UK. This can be done by the employer:
- Checking the individual's original documents in the individual's presence; or
- If the individual has a biometric residence permit or has settled or pre-settled status under the EU Settlement Scheme, checking their right to work online at www.gov.uk/view-right-to-work (if they have provided a share code).
The Home Office has also announced that employers do not need to carry out retrospective checks where COVID-19 adjusted checks were carried out between 30 March 2020 and 16 May 2021 (inclusive). This new guidance, which is intended to support businesses during this difficult time, departs from previous guidance which suggested that employers would need to carry out further checks of the original documents within 8 weeks of the COVID-19 measures ending.
The requirement to undertake checks of original documents again may prove to be problematic for many businesses, given many employees are still working remotely. Employers will need to consider their processes around right to work checks carefully to ensure that right to work checks are undertaken correctly for all new joiners before their employment starts. In most cases, this will mean arranging an in person meeting to carry out these checks before the employee's start date. Online checks will only be possible for individuals with status under the EU Settlement Scheme or where the individual has a biometric residence permit.
Unfortunately, if employers do not carry out the right to work check correctly they will not have a defence against a civil penalty if the individual is later found to be working illegally. Further, if the employer is registered with the Home Office as a sponsor, one of the sponsor duties is to ensure that right to work checks are undertaken correctly in relation to all employees and the Home Office could therefore take action if checks are not being undertaken correctly.
The latest guidance from the Home Office is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.