Right to Work Checks – temporary measures introduced in light of COVID-19

The Home Office on 30 March 2020 provided guidance to businesses on how to carry out Right to Work Checks during the Coronavirus pandemic – this is an issue we at SM&B have been lobbying the Home Office to provide urgent guidance on as many employers were ensure on how to carry out these checks given many offices are “locked down”.

Employers should take note that the Right to Work check provisions have been temporarily adjusted in light of the pandemic – a step introduced by the Home Office as a workaround for employers who are unable to physically check original identity documents in the presence of prospective employees/employees.

As of 30 March, the following temporary measures will now be permitted:

  • Checks can now be carried out via video call.
  • Job applicants and existing workers (for follow-up checks) can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending the original document.
  • Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any List A or List B acceptable documents.

Carrying out a Right to Work check continues to be a mandatory requirement for employers despite the Coronavirus pandemic and failure to carry out a Right to Work check carries the risk of potentially employing an illegal worker which may lead to a Civil Penalty, or in more serious cases, criminal sanctions. Furthermore, employers must also ensure they do not discriminate against, either directly or indirectly, against any individual otherwise they may fall foul of the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997, as amended.

How to carry out a Right to Work Check during the temporary COVID-19 measures

Step 1: You should ask the individual to submit a scanned copy or a photo of their original documents via email or using a mobile app.

Step 2: Arrange a video call with the individual – you should ask them to hold up the original document(s) to the camera and check them against the digital copy sent by the individual.

Step 3: Record the date you made the check and write the following on the document – “adjusted check undertaken on [insert date] due to  COVID-19

Step 4:  If the individual has a current Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme, you can use the online right to work checking service while doing a video call to verify the individual – the individual must give you permission and share their “code” with you.

If an individual cannot show their identity documents, you must contact the Home Office Employer Checking Service. If the individual has the right to work in the UK, the Employer Checking Service will send you a ‘Positive Verification Notice’. Unfortunately, this service can only be used for non-EEA nationals who require a visa to be in the UK. For British citizens or EU nationals, we would recommend asking those individuals to send an image of their List A documents and then carrying out a video call to verify.

Temporary measures – there will be an end date

The Home Office have made it very clear that these measures are only temporary and that they will be notifying us in advance once the measures will end. Once the measures end, the original Right to Work check process will resume – if your organisation does not have a process in place to perform Right to Work Checks prior to or on the first day of employment, please speak with Sundeep Rathod who can help your organisation implement such process as part of your on-boarding procedures.

It’s important to note that employers will need to carry out a retrospective check on the following employees:

  • Those who started working for you during these measures (i.e. from 30 March or when your organisation went into “lockdown”).
  • Required a follow-up right to work check during these measures (List B employees). You should annotate the check with the following wording: “The individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.

The Home Office have set a deadline of completing the retrospective check within 8 weeks of the COVID-19 measures ending. Both checks should be kept on the personnel file of the relevant employee.

Our Business Immigration team would advise employers begin collating a separate list of employees whom you had to perform a Right to Work check for during these temporary measures as a follow-up check will need to be made. We also advise that a printout of the guidance document be placed on the personnel file of each individual whom an adjusted check was made.

The guidance document makes clear that the Home Office will not take any enforcement action against employers who have carried out the adjusted check set out in their guidance, or a check via the Home Office, and have followed up a check for those individual with a retrospective check. If you have carried out a Right to Work check in the prescribed manner (i.e. you have physically checked either List A or List B documents in the presence of the employee) during the adjusted period, you do not need to undertake a retrospective check – we anticipate this will be a limited number of employers as most offices are closed.

If, at the point of carrying out the retrospective check, you find your employee does not have permission to be in the UK you must end their employment, however, please speak with our Employment and Business Immigration team before taking such steps.

If your organisation requires assistance with preparing process maps/procedures relating to on-boarding, right to work and recruitment, or, if you require further clarification on the above, please speak with our Business Immigration team.