All employers in the UK have a responsibility to prevent illegal working.
An employer would satisfy this obligation by conducting simple Right to Work checks before they employ an individual and thereafter a follow up check, if required, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.
Flexibility over Right to Work checks end from 17 May 2021
As of 30 March 2020, due to COVID-19, Right to Work checks were temporarily adjusted in order to make it easier for employers to conduct these checks.
These checks will remain in place until 16 May 2021
As an employer, you are required to carry out adequate Right to Work checks on employees, even if they are working from home. The adjusted checks are as follows:
- Checks can be carried out over video calls;
- Employees are not required to provide their original documents, and are permitted to send copies by email or via a mobile app;
- The employer can use the Employer Checking Service if an employee is unable to provide any of the relevant documents;
- The employer must record the date the check was made and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
In addition to the above, we recommend for completeness that a screenshot of the COVID-19 concession from the Government website is also kept on file.
Further information on how to carry out the above checks can be found in Gherson’s right to work check previous blog.
Retrospective checks
If you, as an employer, carry out the above adjusted checks between 30 March 2020 to 16 May 2021 on prospective or existing employees, provided these checks are carried out correctly, the Home Office have confirmed that you will not be required to conduct retrospective checks on any such employees.
This comes as good news, given that the Home Office previously stated that retrospective checks would be required within 8 weeks of the COVID-19 measures endings.
Why must employers ensure that Right to Work checks are carried out correctly?
As restrictions start to ease, it is expected that the Home Office will recommence rigorous Right to Work compliance checks.
If an employer conducts the checks correctly, the employer will usually have a statutory excuse against liability for a civil penalty in the event that they are found to have employed someone who is prevented from carrying out the work in question because of their immigration status.
Right to Work Checks for EU, EEA and Swiss nationals
Whilst the UK may have left the EU, how an employer conducts a Right to Work check for EU, EEA and Swiss nationals will remain the same until 30 June 2021. However, thereafter, such individuals will be required to prove that they have permission to work in the UK. The Home Office are yet to provide further information as to how such checks are to be conducted.
If you would like further information in this regard or have questions in relation to conducting the correct Right to Work Checks, please do not hesitate to contact us or follow us on Twitter.
Gherson has over 30 years of experience in assisting with all aspects of UK immigration law and is monitoring the impact of COVID-19 on all immigration issues closely. We have a specialist corporate immigration team who service the needs of a large number of companies. If you would like to speak to a member of our corporate immigration team in respect of any of the issues raised in this blog, please do not hesitate to contact us.
Please note that the information in this blog is current at the date and time of posting. The situation regarding policy and guidance based on the COVID-19 pandemic is subject to change at short notice. We shall be monitoring all aspects of UK immigration which may be impacted by the coronavirus closely, so please do keep updated with further blogs and articles which we will be posting on Gherson.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2021