Right-to-work checks in the UK return to pre-pandemic rules

The temporary adjustments to right-to-work checks due to COVID-19 are ending.

When will the original right-to-work checks be reinstated in the UK?

From 1 September 2021, employers must either check the original documents of applicants or check online if applicants have been given the ‘share code’ that gives them the right to work.

Why were the right-to-work checks relaxed?

Due to the impact of COVID-19, some individuals struggled to show evidence of their right to work in the UK. Because of this, the Home Office asked employers to take extra care to ensure that no job applicants or employees were discriminated against because they were unable to show their documents.

The UK Government also provided a code of practice for employers titled: ‘avoiding unlawful discrimination while preventing illegal working’ and the Home Office allowed employers to carry out right-to-work checks by using video calls to job applicants as well as the use of scanned copies of identity documents.

It was then announced that from 21 June 2021, employers should resume checking the original documents of applicants while in their presence. However, the delay in the easing of lockdown restrictions due to concerns about the Delta variant brought about another postponement of this date to 1 September 2021.

Are retrospective right-to-work checks required for employees who were appointed during the pandemic?

Retrospective checks on employees appointed under the pandemic-adjusted rules are not required. According to the UK Government’s website: Coronavirus (COVID-19): right-to-work checks, employers do not need to carry out retrospective checks on those who had COVID-19 adjusted checks between 30 March 2020 and 31 August 2021. This reflects the length of time that the adjusted checks were in place. They were implemented by Government in an effort to support businesses during this difficult time.

Employers will maintain a defence against a civil penalty if the checks that they undertook during this period were done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.

It remains an offence to work illegally in the UK. Any individuals who are identified as being disqualified from working by reason of their immigration status may be liable to enforcement action.

What happens if employees are not able to show the required right-to-work documents?

If a job applicant or existing worker cannot show the required documents, the employer must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send the employer a Positive Verification Notice. This provides the employer with a statutory excuse for six months from the date in the notice.

Conclusion

With all of the recent changes made by the Government, the implementation of adequate right-to-work checks within the applicable timeframes can become complicated.  Feel free to contact one of our solicitors if you feel that you need help to ensure that the necessary right-to-work requirements have been met in your workplace.

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