On 30th March 2020 a number of temporary changes were made to UK right to work checks. Checks are still necessary, and it is still an offence to knowingly employ anyone who does not have the right to work in the UK. However, the idea was to come up with some practical ways of simplifying this process while people cannot meet face to face. These temporary rules remain in place for the time being. As more people return to work employers should be alert to the fact that these temporary rules will end at some point. The Home office has said they will give advance notification of when these measures will end, so for the time being we are watching this space. In this article we remind you of the temporary Covid-19 measures, and set out the steps you must take when those measures come to an end.
A reminder of the current rules – how to conduct a right to work check during the temporary Covid-19 measures
- Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
- Arrange a video call with the worker. Ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
- Record the date you made the check, and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
- If the worker has a current Biometric Residence Permit or Biometric Residence card or status under the EU Settlement Scheme you can use the online right to work checking service (https://www.gov.uk/view-right-to-work) while doing a video call – the applicant must give you permission to view their details (https://www.gov.uk/prove-right-to-work).
Where a job applicant or existing worker cannot show you their documents you must contact the Home Office Employer Checking Service (https://www.gov.uk/employee-immigration-employment-status). If the person has the right to work the Employer Checking Service will send you a “Positive verification Notice”. This provides a statutory excuse (which serves as a defence) for 6 months from the date in the notice.
What will happen when these temporary measures come to an end?
We don’t yet know when these measures will end. When they do, employers should revert to following the checking process set out in the employer’s guide (https://www.gov.uk/government/publications/right-to-work-checks-employers-guide ).
It is a requirement that within eight weeks of these measures ending, employers should carry out retrospective full checks on:
- existing employees who started working during the period for which the temporary Covid-19 measures were in place (i.e. 30th March 2020 onwards); and
- existing employees who required a follow-up right to work check during this period.
These checks should be labelled “The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.” Both checks must be retained for your records. If, at the time of the retrospective check the individual does not have permission to be in the UK, then you must end their employment.
No enforcement action will be taken if an employer carries out an adjusted check, followed up with a full retrospective check. Note if you were able to carry out a full check during the pandemic it will not be necessary to carry out a retrospective check.
What should employers be doing now?
If you are already starting to get people back to work, consider whether you can start undertaking any retrospective checks now, and do so where you can.
Employers should also be mindful of significant forthcoming immigration changes in the UK. Employers who wish to engage workers from outside of the UK after 1 January 2021 will need to apply to the Home Office to become an approved sponsor under the modified points-based system. In preparation for that process employers should start to familiarise themselves with the eligibility requirements, the applications process and the applicable fees. It would also be wise to consider which personnel will take on responsibility for the sponsorship process and sponsor management system. Applications take time to process so employers should prepare and consider making their applications sooner rather than later.
Note that EEA citizens and their families that are already living in the UK will be exempt from the points-based system if they have made the required free application under the EU Settlement Scheme (deadline 30 June 2021). Employers should offer information and support to these workers to ensure any applications for settled status have been made in good time before that deadline.
For more information about any of the issues in this article please contact us on 01869 351833.
