If you are an employer in the UK, it is a mandatory requirement for you to carry out Right to Work check on your employees to ensure that you are compliant with the Home Office’s Code of Practice on preventing illegal working.
You can satisfy this obligation by conducting Right to Work checks prior to employing any individual, whether they are from overseas, or they are free from UK immigration control. You must also conduct a follow up check, if necessary, to ensure that the relevant employee is still qualified to carry out the job role on the basis of their immigration status.
FACT 1 – Conduct a compliant right to work check
If you conduct a compliant right to work check, you will have a statutory excuse against liability for a civil penalty. Therefore, If the Home Office find that you have employed someone who does not have the right to do the work in question, but you have correctly conducted right to work checks as required, you will not receive a civil penalty for that illegal worker.
FACT 2 – Right to Work Check Types
There are 2 different types of Right to Work Check:
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A Manual Right to Work Check
There are 3 stages to this check
Obtain the original version of one or more acceptable identification documents
Check the documents validity in the presence of the holder
Copy – make and retain a clear copy and record the date the check was taken
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An Online Right to Work Check
Online checks do not apply to all individuals, they can only be carried out on those who hold a Biometric Residence Permit or a new EU Settlement Scheme document.
The employee may provide the employer with a ‘share code’ to enable the employer to access the Right to Work record.
If the employees do not want to demonstrate their right to work using the online service, a manual check must be conducted instead. The process to carry out the check is similar to the manual check, however, you do not need to see the original document, you will, however be required to ensure the employee is on video call for the process.
FACT 3 – Right to Work Check Covid Flexibility
Due to COVID-19, flexible Right to Work Checks have been enforced until 5 April 2022.
Manual Right to Work Checks can be conducted remotely. This provision was initially introduced on 30 March 2020. The adjustments to the manual Right to Work check is as follows:
Checks can continue to be carried out over video call;
- 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 continue to 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”.
FACT 4 – Not Completed a Right to Work Check
If you have not completed a Right to Work Check, or the employee does not have the relevant documents prior to the commencement of their first day of employment, the employee should not work for you. In some instances, if an employee is working for you and they have an outstanding application with the Home Office, you will be required to carry out a follow up Right to Work Check, which can be completed via the online Employer Checking Service.
FACT 5 – EU, EEA or Swiss Nationals
As of 1 July 2021, any EU, EEA or Swiss national commencing employment in the UK have to demonstrate that they have the right to work in the UK, in the same way as other foreign nationals would be required to do. They can no longer rely on their EU, EEA or Swiss passports or national identity cards to prove their right to work here.
The steps already discussed would be required for such individuals.
How can Gherson assist you?
I have briefly discussed why Right to Work Checks are important and how they can be conducted, our specialist corporate immigration team service can meet the needs of a large number of companies.
If you would like to speak to us in respect of any of the points raised in this video, or about your specific circumstances, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.
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