Undertaking a compliant right to work check is the way in which employers can protect themselves against a possible civil penalty of up to £20,000 should it transpire that the employee does not have the right to work in the UK.
Usually the only way to carry out a right to work check is through either:
- Carrying out an online right to work check on the basis of the employee’s copy document where the individual holds a current Biometric Residence Permit, Biometric Residence Card or status issued under the EU Settlement scheme (settled or pre-settled status); or
- Undertaking a manual right to work check where the employer checks the original document (passport, Biometric Residence Permit etc) in the presence of the individual presenting the document.
In both cases, the right to work check must be undertaken before the employee starts work and the employer must make and retain copies of the appropriate documents and record the date on which the right to work check was made. The Home Office has a useful right to work checklist outlining each of the steps for a compliant right to work check (access here).
Adjusted right to work checks during COVID-19
Clearly, this usual method of undertaking right to work checks is near impossible with the current restrictions on daily life.
The Home Office has responded by allowing employers to carry out an ‘adjusted’ right to work check temporarily during this period. This is only relevant for right to work checks carried out from 30 March 2020. Any checks carried out before this date will not benefit from the relaxed rules.
This adjusted right to work check will consist of two steps – an initial check and a retrospective check:
Step 1 – initial check
- If the individual has a Biometric Residence Permit or Biometric Residence card or status under the EU Settlement Scheme employers can use the online right to work checking service while doing a video call with the individual. The individual must give permission to the employer to view their details.
- Alternatively, if you need to carry out a manual right to work check, employers should request a copy of the document to be sent to them via email or using a mobile app. The employer then needs to arrange a video call with the individual and should ask them to hold up the original documents to the camera so that the employer can check that against the digital copy of the document. The person carrying out the right to work check must also record the date of the check and mark it as an ‘adjusted check undertaken on [date] due to COVID-19’.
In all other respects, the checks still needs to be carried out in the correct way – in line with the steps in the Home Office right to work checklist.
Step 2 – retrospective check
Once the temporary relaxation of right to work checks has ended, employers must then carry out a follow-up/retrospective right to work check in the usual way (i.e. online right to work check or manual right to work check of the original documents). This check must be carried out within 8 weeks of the COVID-19 measures ending and employer must retain both right to work checks on record. The Home Office has confirmed that it will advise employers in advance when these measures will come to an end.
The Home Office has also stipulated that this follow up right to work check must be recorded with ‘the individual’s contract commenced on [date]. The prescribed right to work check was undertaken on [date] due to COVID-19.’
This retrospective check is only required where the employer had to carry out an adjusted right to work check from 30 March 2020 onwards.
Provided the initial adjusted check and the retrospective check were carried out correctly, the Home Office has said that they will not take enforcement action against the employer.
Individuals who cannot provide their documents
As is usually the case, where individuals cannot provide their documents to the employer – perhaps because they have an outstanding application with the Home Office – the employer can use the Employer Checking Service to check the individual’s right to work in the UK.
Provided the Employer Checking Service sends a ‘Positive Verification Notice’, this will provide the employer with a statutory defence against a civil penalty for six months from the date of the notice. A follow-up right to work check then needs to be carried out before the Positive Verification Notice expires in six months’ time.
This temporary relaxation on right to work checks is welcome in a time where businesses are struggling with the drastic impact of the pandemic on usual working life.
However, in the current climate, employers also need to be especially mindful of the risk of discriminating against job applicants or existing employees where those individuals are unable to provide their documents.
Employers who are considering suspending/dismissing employees who appear to no longer have the right to work in the UK should take specialist immigration/employment advice before doing so.