In our two part series on Right To Work checks, we outline the measures employers have to take following the recent announcement from the Home Office. As teh pandemic is a fluid situation, it is recommended that employers are aware of any updates and changes.
Guidance for Employers
UK employers have a legal obligation to comply with the prevention of illegal working legislation. Employers must conduct basic documentation checks on all their UK based employees to verify that individuals employed have permission to perform the work on offer. Here we explain how to conduct employer Right to Work checks, and the Right to Work documents that should be provided by employees.
Conducting Right to Work checks correctly and as confirmed in law, offers employers a defence where an issue with the immigration or working status of any employees may arise.
Right to Work checks must be conducted indiscriminately for prospective employees, regardless of nationality, race or ethnicity.
End of Covid Right to Work check scheme
The Home Office introduced ‘adjusted’ checks as a temporary measure in March 2020 allowing employers to conduct document checks remotely. This process is now due to end on 31 August 2021.
From 1 September 2021, UK employers must conduct full document checks in line with the Home Office guidance for employers.
Employers must once again be in possession of the original documents when carrying out a Right to Work check and scanned and digital copies of original documents will no longer be acceptable or provide a defence against enforcement action. The employer must have been presented with the physical document in original form, either physically present with the individual or virtually using live video (as was permitted before the pandemic), unless using the Home Office’s online checking service.
The reliance on digital copies of original documents, or viewing the documents via video link, will no longer be acceptable or provide a statutory excuse against enforcement action.
If relying on an online check using the share code, the employer must see the new employee face to face on their first day to confirm the photo of the person on the online check is the person attending for work. When meeting the employee, the employer should download and save a copy of the online checks PDF document and record the time and date of meeting the employee person on their first day.
Employers may be able to defend allegations of illegal working if they can show they conducted document checks in line with the full prescribed manner or the COVID-adjusted rules during the period of the scheme’s validity. Individuals who are found to be working illegally, and their employers, may be subject to enforcement action by the Home Office.
We advise employers ensure :
- checks made under the adjusted temporary scheme have been clearly marked words, as published by the Home Office: “adjusted check undertaken on [insert date] due to COVID-19”.
- checks that required a follow-up Right to Work check using the emergency measures should be marked as: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
The Home Office has specified employers will not be required to carry out full or ‘corrected’ checks retrospectively where a COVID-adjusted check had been used between 30 March 2020 till 31 August 2021.
In our second part of this series, we cover Right To Work checks specifically relating to EU workers now that the rules have changed for them since the end of the Withdrawal Agreement.
Please contact us if you would like any further advice, guidance or a consultation.