How has coronavirus changed right to work checks?

While you may not be currently recruiting due to coronavirus (Covid-19) pandemic, we appreciate that for some businesses the opposite is the case.  In light of this, the Government has temporarily adjusted “right to work” checks in order to adhere to social distancing guidance to reduce the spread of the virus.  Our Employment Law team review the temporary changes made and discuss how you can practically conduct these checks in the weeks to come.

What changes have been made to “right to work” checks?

Since 30 March 2020, the following temporary changes have been made:

• Checks can be carried out over video calls;
• Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
• You should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

It is still necessary for you to check the workers’ prescribed documents listed in the Home Office guidance ‘Right to work checks: An employer’s guide’ and it is still an offence to knowingly employ anyone who does not have the right to work in the UK.

If you employ someone without the statutory right to work, you can face one or more of the following penalties:

• Up to £20,000 fine per illegal worker without a statutory excuse;
• Being placed onto the Government’s public “name and shame” list;
• Losing your trading licenses and/ or sponsorship licence.

As a result of Covid-19, some individuals may not be able to evidence their right to work. During this period, you must take extra care to ensure you do not discriminate against a job applicant or an employee because they are unable to show their documents.

How to conduct a right to work check with the new temporary measures

There are several practical steps you can follow to adhere to the new checks:

• You should ask the worker to send a scanned copy or a photo of their original documents via email or using an app.
• You should then arrange a video call with the worker where you will need to ask them to hold up the original documents to the camera and check the original document against the digital copy that was sent.
• The date of this check should be recorded and marked 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 while doing a video call. You should note that to do this the applicant must give their permission to view their details.

What to do if the job applicant or existing worker cannot show their documents

In this situation, you must contact the Home Office Employer Checking Service.  If they have the right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’ which will provide you with a statutory excuse for 6 months from the date in the notice.

What happens to right to work checks once the Covid-19 measures end?

In the future once the restrictions have been lifted, the Government will notify employers in advance of when these measures will end.  After that date, you should follow the checking process as before, which is as follows:

• Obtain original versions of one or more acceptable documents which evidence the individual’s right to work.
• Check the document’s validity in the presence of the holder.
• Make and retain a clear copy of the document and record the date the check was made.

You will also be asked to carry out retrospective checks on existing employees who:

• Started working for them during these measures;
• Required a follow-up right to work check during these measures.

It is therefore important that you keep note of whose right to work check was conducted under these temporary measures to ensure that you carry out this retrospective check, marking it with “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.”

This retrospective check must be carried out within eight weeks of the Covid-19 measures ending and both checks should be kept for your records.  If, when you carry out the retrospective check, you find that your employee does not have permission to be in the UK you must end the employment immediately.  If the check that you undertake during the adjusted period was done in the prescribed pre Covid-19 manner, you do not need to undertake a retrospective check.

The impact pf Covid-19 is having a significant impact on Employment Law and how businesses operate with their employees.  If you have questions regarding right to work checks, Furloughed Leave or any other Employment Law issue that has arisen in the past weeks, you can contact the team on 023 8071 7717 or email employment@warnergoodman.co.uk to discuss how they can assist you during this time of change.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.