Right to Work – in the UK, in a Pandemic, in 2021

Right to Work – in the UK, in a Pandemic, in 2021

Key Contact: Claire Knowles

Author: Adam McGlynn

Between Brexit and the Coronavirus pandemic, businesses have faced huge changes over the last year and the accompanying evolution of employment law shows no signs of slowing down. One area which has received particular attention over the last few months is the right to work in the UK, the appropriate checks businesses should be conducting, and these processes may be changing. Below is a list of our most frequently asked questions on the law and practice of right to work checks and you can also find our full webinar on the topic here.

General Principle

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay.

What sanctions could be imposed for employing an employee without the right to work?

Businesses could face a Civil Penalty of up to £20,000 per illegal worker as well as further sanctions such as the closure of the business, seizure of earnings, and the downgrading or revocation of a sponsorship licence. Individuals with responsibility over the illegal worker may also face sanctions such as disqualification from their directorship and/or, when knowingly employing a worker with no right to work, a criminal conviction with a prison sentence of up to five years and an unlimited fine.

What can employers do to protect themselves?

Employers can carry out “right to work” checks on all prospective employees and conduct follow-up checks when necessary. Employers will need to keep records of all checks carried out and not employ anyone it knows or has reasonable cause to believe is an illegal worker.

Demonstrable compliance with prescribed requirements will establish a Statutory Excuse excusing the employer from paying a civil penalty in the event of employing an illegal worker.

Failure to conduct checks is not a crime, in itself, unless the employer is also knowingly employing people with no right to work. The failure to conduct checks will, however, mean there is no Statutory Excuse established.

What process should be followed?

  • Obtain the individual’s original documents as prescribed in the Home Office guidance, which will depend on whether the individual has a permanent right to work, a temporary right, and/or will be required to supply further evidence.
  • Check (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered, and valid.
  • Copy the documents, record the date of the check, record the date for any follow-up checks, and retain copies of the documents securely.

When must checks be carried out?

Right to work checks must be conducted before employment commences to establish a Statutory Excuse. However, employers should also be cautious that their recruitment practices are not deemed to be discriminatory. Best practice would be for right to work issues to be raised in the final stages of selection and not, where possible, at the application stage.

Have there been any adjustments to right to work checks to account for COVID restrictions?

Right to work checks can already be conducted via video call but, ordinarily, the employer will still need to be in physical possession of the actual original documents. A scanned or faxed copy would not give rise to a Statutory Excuse.

For a temporary period, however, employers can conduct video call checks without physical possession of the original documents.

The employer may use copies (such as scanned copies or a photograph) and the individual must hold up the original documents to the camera during the call to be checked against the digital copies sent.

The recorded check date must be marked “Adjusted check undertaken on [DATE] due to COVID-19″. When the COVID-19 temporary measures end, a retrospective check will be necessary within eight weeks, marked with “The individual’s contract commenced on [DATE]. The prescribed right to work check was undertaken on [DATE] due to COVID-19″. Copies of both checks should then be kept for the employer’s records.

How will right to work checks look from 1 January 2021?

EU nationals arriving in the UK from 1 January 2021 will need to meet the ‘Immigration Rules’ requirements as non-EU nationals if they want to work in the UK.

Employers may therefore be considering conducting “right to work audits” to ensure that their EU national staff have a legal right to continue to work in the UK from 1 January 2021, BUT

Home Office guidance clarifies that employers must not discriminate against EU nationals and should not ask existing employees or new hires to prove their status beyond their EU passport or national ID between 1 January 2021 and 30 June 2021 (the deadline for applying for EU Settled Status).

In the meantime, employers can encourage staff to apply under the EU settlement scheme and remind them of deadlines.

The Home Office has not clarified how employers should approach right to work checks following 30 June 2021 for those employees hired within the grace period who may or may not be working legally. We anticipate further guidance on this in due course, potentially requiring businesses to conduct follow-up checks. In the meantime, employers may rely on the current guidance from the Home Office during this grace period but should also remember not to ‘turn a blind eye’ to employees who they know are working illegally as knowledge will still give rise to criminal offence.

What should an employer do on confirming that the employee is working illegally?

Where it transpires that the employee does not have, or no longer has, the right to work in the UK, illegality renders the employment contract void and unenforceable by either party. Continued employment would become illegal and risk both civil penalties and criminal sanctions. The employee should, therefore, be dismissed and, as the contract is illegal, this can be done summarily without notice.

Employers should take care when dismissing an employee in these circumstances, particularly when terminating without notice, as being mistaken may give rise to a claim for wrongful dismissal and, potentially, unfair dismissal. As there is always the possibility of being mistaken, the employer should ensure they follow a fair process which, in this case, may mean offering the right of appeal.  

For further information on right to work checks in 2021, contact our Employment team.

Claire Knowles – Partner

Adam McGlynn – Solicitor

Daniel Evans – Solicitor

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