COVID-19: Right To Work Checks

As some UK employers may already be aware, the government has temporarily adjusted the Right to Work Checks as a result of the coronavirus pandemic.

Although the checks remain mandatory, the temporary measures which came into effect on 30 March 2020 accommodate employees who may be unable to provide the necessary original evidence of their Right to Work in the UK.

Accordingly, as of 30 March 2020:

• Right to Work Checks can be carried out remotely via videocalls;
• Prospective and existing workers can send scanned copies or photographs of documents to employers electronically (via email or using a mobile app), rather than providing original documents; and
• Employers are to use the Employer Checking Service if a prospective or existing employee is unable to provide any of the prescribed documents.

During the period for which the above measures are in place, employers are encouraged to take extra care to ensure that no one is discriminated against, either as a prospective or existing employee, due to the fact that they cannot evidence their Right to Work.

In order to conduct a Right to Work Check under the adjusted COVID-19 measures, the following steps should be taken:

1. The worker should provide a scanned copy or photograph of their original documents via email or using a mobile app;
2. The employer should set up a videocall with the worker whereby the worker shows the employer the original document for checking against the digital copy;
3. The employer should record the date of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

In addition:

1. If the worker has a current Biometric Residence Permit or Residence Card or status under the EU Settlement Scheme, the employer can use the online right to work checking service. The employer must request the worker’s permission for this;
2. If the worker cannot provide the necessary evidence of their right to work, the employer must contact the Home Office Employer Checking Service to seek verification.

What happens once the COVID-19 measures end?

Once the temporary COVID-19 measures have come to an end, employers must carry out a retrospective right to work check within 8 weeks, and mark the checks as follows: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”.

However, in the event that an employee is found not to have permission to be in the UK at the time of carrying out a retrospective check, the employer must terminate any such employment immediately.

In all cases, both the adjusted and retrospective check must be held on the employer’s records.

Crucially, employers should note that enforcement action will NOT be taken against them if they conduct Right to Work Checks under the adjusted measures (or make the relevant Home Office check), and follow this up with a retrospective check.

Gherson continues to monitor all COVID-19 updates released by the UK government – in particular those relating to employer’s duties. If you require further information or have any queries regarding Right to Work Checks or employer’s duties towards prospective and existing migrant employees during this pandemic, please contact a member of our team.

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 2020