Right to Work Checks: COVID-19 Adjusted Measures Extended
Key Contact: Claire Knowles
Author: Adam McGlynn
On 30 March 2020, the Home Office relaxed the process of checking an employee/ job applicant’s right to work in order to make remote checks more convenient and facilitate social distancing. While remote checks were possible beforehand, the employer conducting the check was still required to have physical possession of the original documents at the time of the check.
In response to the Coronavirus pandemic, the Home Office’s temporary adjusted measures allow employees and applicants to send scanned copies or photographs of their documents to be checked, rather than the originals. The check may then be conducted via video call with the employee or applicant presenting the original remotely while the employer has possession of the facsimile.
The temporary adjusted measures have now been extended to 5 April 2022.
An employee or applicant may decide to use the Home Office’s online right to work checking service which can also provide a ‘statutory excuse’, protecting the business from a civil penalty if the employee is later discovered to be working illegally. This may be more convenient depending on their immigration status. However, the choice to present documents or use the online service should be left to the employee/ applicant, and employers should be wary not to discriminate based on this choice, or at any stage of the checking process.
All right to work checks must be dated, but adjusted checks must be marked as follows:
“Adjusted check undertaken on [DATE] due to COVID-19″
Though the original intention was to require retrospective checks following the pandemic, the Home Office has confirmed that there will be no need to conduct follow up checks due to the length of time the adjusted measures have been in effect. In order to ensure a statutory excuse is established by the adjusted check, it is still important to ensure the right to work check is conducted according to Home Office criteria. One of the most important criteria is to ensure the check is conducted before the employee or applicant commences their employment. For further guidance on properly establishing a statutory excuse, please see our article Right to Work – in the UK, in a Pandemic, in 2021 and/or ouraccompanying webinar.
From 6 April 2022, facsimile documents will no longer be acceptable when conducting right to work checks. However, the Home Office has confirmed that they intend to introduce a digital solution which will make remote right to work checks both convenient and secure. Unlike the current online checking service, this platform is also intended to be useable by UK and Irish citizens, meaning a single process can be used for all employees and applicants.
Further guidance on right to work checks from 6 April 2022 is expected closer to the time. In the meantime, if you have any questions, please feel free to reach out to our Employment team.