D-BRIEF – Employment & Pensions Blog: Right to Work Checks

This blog highlights two key changes to right to work checks which will come into effect in the coming months.

Employers need to be aware of the new rules to ensure that they are carrying out right to work checks correctly.

Covid-19 Adjusted Right to Work Checks

Employers have, since 30 March 2020, temporarily been allowed to conduct right to work checks on new employees remotely due to the risk of the COVID-19 pandemic. However, these temporary measures are coming to an end on 16 May 2021. As such, employers will have to revert to conducting full right to work checks from 17 May 2021.

This means checking either of the following, to ensure that workers have the right to work in the United Kingdom:

  • Original copies of the worker’s documents and proof of right to work in the United Kingdom; or
  • Checking the worker’s right to work online.

With the Government guidance being that employees should work from home where they can until Step 4 of the Roadmap, this change may lead to some difficulties in reviewing original documents. However, employers can comply with the obligation to inspect the originals of a worker’s documents by requesting that these are sent to them in the post (although of course this is dependent upon the individual being content to send away such important documents).  The worker does not need to be physically present when the originals are inspected as the validity check can be done with the worker via a video link.

If the worker has a status granted under the EU Settlement Scheme, has a Biometric Resident Permit, a Biometric Residence Card or a Frontier Worker permit, relevant right to work checks can be carried out online. It is important that employers use the employer part of the online checking service, and not just view the migrant part. Employers need to retain evidence of the online right to work check by saving the profile page as a PDF or by printing this out and keeping a hard copy. The results should be stored securely for the duration of employment and for two years afterwards.

Retrospective Checks

There is now no requirement for employers to carry out retrospective checks on workers who were hired using the COVID-19 temporary right to work checking process. It had previously been stated that ‘proper’ checks would have to be completed within 8 weeks of the Covid-19 measures ending but this requirement has been withdrawn.

Brexit Right to Work Checks

We have had a flurry of enquiries recently about right to work checks on EU nationals after 1 July.  More detail about this can be found in one of our previous articles here, but in summary:

  • Before 1st July 2021: For individuals who were in the UK before 1 January 2021, employers will be able to continue to rely upon EU, EEA or Swiss passports or identity cards as adequate right to work documentation. Employers cannot insist on seeing evidence of settled or pre-settled status.
  • After 1st July 2021: EU, EEA or Swiss passports or identity cards will no longer be acceptable as evidence of the right to work in the United Kingdom. Instead, employers will be required to obtain a copy of either a right to work visa obtained under the new UK Points-based Immigration System, or a “share code” in order check online that the worker has either a pre-settled or settled status under the EU Settlement Scheme.

Retrospective Checks

Employers will not be required to carry out any retrospective right to work checks on EU, EEA or Swiss nationals that were employed prior to 1 July 2021 i.e. employers do not need to check that their existing employees do in fact have pre-settled/settled status. This is subject to the employer not having reasonable cause to believe that an individual worker does not have the right to work in the United Kingdom.

If the employer begins to have reasonable cause to believe that an individual worker does not have a right to work in the United Kingdom, they should undertake an immediate investigation which may potentially result in dismissal.  This is because it is a criminal offence to employ someone who the employer knows or had reasonable cause to believe was disqualified from working in the UK.  Pre-1 July 2021 checks would no longer provide the employer with a defence if subsequent credible information had called someone’s right to work into question.

For more information on the changes mentioned within this blog, please contact a member of the Employment Team.

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