Employers are required by law to check that their employees have the right to work in the UK.
There are 3 basic steps to conducting a right to work check (RTW):
Under section 15 of the Immigration, Asylum and Nationality Act 2006, an employer may be liable for a civil penalty of up to £20,000 if they employ someone who does not have the right to undertake the work in question.
If an employer conducts the RTW correctly before employment begins for a person who has a permanent right to work in the UK, they will establish a continuous statutory excuse for the duration of that person’s employment. However, employers will be required to conduct a follow-up check in order to retain their statutory excuse for a person who has a temporary right to work in the UK, this will generally be when their permission to be in the UK comes to an end.
Acceptable documents to prove the right to work in the UK will depend on the potential employee circumstances however it should include one or more of these documents:
The Home Office has made temporary changes to the employer process for conducting right to work checks in response to the coronavirus pandemic.
In response to the coronavirus pandemic, the Home Office has instituted, a temporary adjusted procedure, which must be backed up by retrospective checks in due course. The adjusted process includes asking for documents digitally, making checks on a video call and guidance on what to do if someone cannot provide any accepted documents.
To take account of the logistical issues associated with conducting Right to Work checks while most people are required to exercise social distancing and remote working, as of 30 March 2020, a fully compliant RTW can be done in one of two ways, without face-to-face contact.
For anyone who has a Biometrics Residence Permit (“BRP”) card or status under Pre-Settled/Settled Status under the EU Settlement Scheme (“EUSS”), it is possible to conduct an online RTW while the employer is making a video call subject to the employee granting their permission to access their details online.
For those who do not hold a BRP card or status under the EUSS like British nationals, employer can conduct the RTW check by asking the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app then arranging a video call with the worker asking them to hold up the original documents to the camera and check them against the digital copy of the documents.
If the job applicant or existing worker cannot show their documents, for instance, those who have an outstanding application with the Home Office, employers are advised to contact the Home Office Employer Checking Service which will issue a ‘Positive Verification Notice’ if the person has a right to work providing the employer with a statutory excuse for 6 months from the date in the notice.
8 weeks of the COVID-19 measures ending, employers will be required to carry out retrospective checks on existing employees who started employment during the validly of the adjusted procedure or required a follow-up right to work check the same period.
If at the point of carrying out the retrospective check, it appears that an employee does not have permission to work in the UK, the employer must end their employment.
It is crucial for employer to have robust compliance systems in place to avoid liability for employing illegal workers.