In recent weeks we have seen a significant increase in queries about right to work checks and prevention of illegal working in the UK. In response, we have prepared this special edition extended LAWmail covering the key matters which our clients are dealing with.
COVID-19 Adjusted Right to Work Checks Extended
Earlier this month, the Government announced that the COVID-19 adjusted right to work check process will remain in place until 20 June 2021 (previously 16 May 2021). This process enables employers to carry out right to work checks over video call and allows individuals to send scanned copies of documents (as opposed to in-person checks with original documents). From 21st June 2021, employers will be required to conduct right to work checks using original documents which may have to be couriered between the employer and the employee if the employer’s business remains closed. The original document will then be checked against the employee via live video link if not in-person.
Previously, the Government had also stated employers should carry out retrospective checks on existing employees who started working or who required a follow-up right to work check during these COVID-19 adjusted measures. However, this is no longer the case, as new guidance provides that employers will not have to carry out retrospective checks once the adjusted right to work checks end. Employees will maintain a defence against any civil penalty if the COVID-19 adjusted check was carried out in the prescribed way.
How to Carry Out a COVID-19 Adjusted Right to Work Check
Job applicants and existing workers should send scanned documents or a photo of documents for checks using email or a mobile app. The check can then be carried out by arranging a video call with the individual and asking them to hold up the original documents to the camera and check them against the digital copy of the documents. You should record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
If the individual has a Biometric Card or Permit, or has been granted status via the EU Settlement Scheme or points-based immigration system, employers can use the Home Office’s Right to Work Checking Service whilst on the video call, with the individual's permission.
If the individual cannot provide any of the accepted documents, employers may use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents, with the individual's permission. If the individual has the right to work, the employer will receive a Positive Verification Notice which will then provide the employer with a statutory excuse for 6 months from the date in the notice.
Right to Work Checks for EU, EEA and Swiss Nationals
Following Brexit, immigration rules are changing meaning that EU, EEA and Swiss nationals who entered the UK before 11 pm on 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme (EUSS). If their application is granted, this will give an individual the right to work in the UK. However, with reports that the Home Office may have a backlog of 320,000 applications, employers should note that individuals who have applied and await a decision, or who await the outcome of an appeal against the decision will have the right to work until their application has been determined.
Right to Work Checks Throughout the Transition Period for EU, EEA and Swiss Nationals
EU, EEA and Swiss nationals recruited between 1 January 2021 and 30 June 2021 can provide the following documents to prove their right to work:
EU, EEA or Swiss citizens can use their passport or national identity card;
non-EU, EEA or Swiss citizen family members can use an immigration status document listed in the right to work checks employer guide; and
EU, EEA and Swiss citizens and their family members can use the online right to work checking service.
Alternatively, if the individual has been granted permission under the EUSS, the individual can choose to share evidence of their right to work using the online checking service. However, employers have a duty not to discriminate against employees on the basis of nationality. This means an employer cannot require these individuals to show them their status under the EU Settlement Scheme until after 30th June 2021.
Following this deadline, there is no requirement for employers to carry out retrospective right to work checks for existing EU, EEA and Swiss national employees who were employed on or before 30 June 2021.
This may mean that an employer has carried out the prescribed checks for an EU, EEA or Swiss National who arrived in the UK after 1 January 2021, but they may not have the right to work and could be working illegally. The Government has stated that employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working if the initial right to work check was carried out in the prescribed way at that time.
Right to Work Checks from 1 July 2021 for EU, EEA and Swiss Nationals
From 1 July, all EU, EEA and Swiss nationals will be required to evidence their right to work via their immigration status, rather than their nationality, using the online checking service. However, there will be a small number of exceptions to this and further guidance from the Home Office is expected on this point in advance of 1 July 2021.
Practical Steps for Employers to Take
There is no obligation to do so, however, employers may encourage employees to apply to the EU Settlement Scheme by directing them to the information that the government is providing before the 30 June 2021 deadline. It is best to do this on a company-wide basis in order not to discriminate against individual employees.
Additionally, employers should ensure that staff carrying out right to work checks are adequately trained and familiar with the upcoming changes, for instance, by creating an internal policy or offering additional training to staff. As well as this, employers should keep an eye out for updated guidance from the Government.