The Coronavirus (Covid–19) pandemic continues to affect the way we operate our daily lives. In light of the police-enforced lockdown and other social distancing measures, employers face an unprecedented challenge in ensuring they comply with their responsibilities whilst trying to maintain business continuity.
The UK government has confirmed that the process in carrying out the right to work checks will be amended to allow employers to still carry out these checks during the coronavirus pandemic. These new measures are detailed in the Home Office’s guidance, which takes effect from 30th March 2020. This should make it easier for employers to carry out their compulsory right to work checks in light of the stringent social distancing measures currently in place.
Prior to the introduction of this guidance, employers were required to carry out either a manual right to work check or an online right to work check before employing a person. Under the new temporary measures, the UK Home Office have confirmed that right to work checks can now be carried out via video calls as opposed to the requirement of doing so in the presence of the prospective employee or existing worker. Employers will be permitted to accept scanned documents or photographs of documents from prospective employees and existing workers using email or a mobile app, instead of requiring original documents to be sent to them.
Where the prospective employee or existing worker sends a scanned copy or a photo of their original documents via email or using a mobile app, the employer should arrange a video call with the prospective employee or existing worker. The employer, during this video call, should ask the prospective employee or existing worker to hold up their original documents to the camera and check this against the digital copy of the documents sent to the employer prior to the video call.
As per the existing requirements for right to work checks, employers will be expected to record the date the check was made, however under the new temporary measures, employers will be asked to mark the file copy of the check made with “adjusted check undertaken on [insert date] due to COVID-19”.
Where the prospective employee or existing worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme, employers will be able to use the online right to work checking service while doing the video call. It is important that employers obtain permission from the applicant prior to viewing their details.
The guidance makes it clear that these measures are temporary with the full expectation that things will go back to normal when the Covid-19 measures end. The Home Office will provide advance notice of when these temporary measures will end. The guidance confirms that employers will be subject to the normal right to work checks when these temporary measures end.
Additionally, employers must carry out retrospective checks within 8 weeks of the Covid-19 measures ending. These retrospective checks will need to be carried out on existing employees who either started employment during these measures or required a follow-up right to work check during these measures. The guidance confirms that the employer will do these in line with the normal right to work checks – i.e. the employer would check the original document in the presence of the prospective employee or existing worker – and mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
Employers will be expected to keep evidence of both checks for their records. Importantly, the guidance confirms that the Home Office will not take any enforcement action against the employer, where the employer can evidence that the adjusted right to work checks set out in this guidance were carried out correctly.
Where an employer is found to be employing someone illegally and has not carried out the prescribed checks – or their temporary alternative measures - they could face substantial sanctions including but not limited to a civil penalty of up to £20,000 per illegal worker; in serious cases, a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine; closure of the business and a compliance order issued by the court; etc.
We are living in unprecedented times and it is expected that due to Covid-19, some individuals may not be able to provide evidence of their right to work. Employers should take extra care to ensure that no one is discriminated against as a job applicant or employee because they are unable to show you their documents. The guidance confirms that the Home Office Employer Checking Service will continue to be operational and should be used where the job applicant or existing worker cannot show their documents.
Caution should therefore be exercised when applying these new temporary right to work checks in practice. If your organisation has a query about this or indeed any immigration law issue, please contact Gurjit Pall on 0131 225 8705 or email gpall@thorntons-law.co.uk
