Right to Work Check Flexibility Comes To End 17th May 2021

All employers in the UK are required by law to carry out right to work checks on employees, however, since 30^th March 2020, when the first wave of COVID-19 took hold, there have been a number of adjustments to the process. It now appears that an end date of 17^th May 2021 has been put in place for when these temporary changes will be lifted. In this article, we will explain the current changes to the right to work process and what will happen when the period of flexibility is lifted on 17^th May 2021.

What Were The Temporary Right To Work Check Changes Which Came Into Force In March 2020?

Due to the practicalities of meeting people face to face, it was not possible to expect employees to carry out right-to-work checks in the normal way. From 30^th March 2020, it has been possible for employers to carry out the checks necessary using video calls and also for prospective and existing employees to submit scans and photos of documents via email or a mobile app, removing the need to view originals. The modified guidance, which currently applies, advises that employers must:

• ask the worker to send a scanned copy or a photo of their original documents via email or using a mobile app
• arrange a video call with the worker – the worker must hold up the original documents to the camera allowing the employer to verify them against the digital copy of the documents. The person carrying out the check is supposed to record the date they made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
• for workers with a valid and current Biometric Residence Permit (BRP), or a Biometric Residence Card, or with Pre-Settled or Settled Status under the EU Settlement Scheme, or with immigration status using the points-based immigration system, employers can make use of the online right to work checking service while on the video call (the Home Office point out that the prospective employee must grant permission to view their details)

The idea of the changes to the right-to-work process made in March 2020 was to allow for digital means of meeting prospective and current employees and remove the need to post original documents.

How Will The Right To Work Check Process Change On 17^th May 2021?

The 16^th May 2021 will be the final day for the above right-to-work changes. From 17^th May, employers will need to revert to requesting and checking the original copies of right to work documents, or where it is permitted, use the online right to work check system.

The updated guidance, while outlining the removal of the changes which have been in place since last March, also reminds employers not be breach discrimination laws. The guidance states, “Due to the impact of COVID-19, some individuals may struggle to show evidence of their right to work in the UK. As a result, you must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents”. To assist with this potential problem, in 2014, the Home Office published the ‘Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working. This explains that employers must not discriminate on the basis of any of the protected characteristics contained in the Equality Act 2010, including:

• race
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• religion or belief;
• sex; or
• sexual orientation.

What If A Prospective Sponsored Worker Still Cannot Show Me Their Original Documents Due To COVID-19?

The latest guidance reiterates that while employers have to carry out right to work checks, “Job applicants should not be treated less favourably if they produce acceptable documents

showing a time-limited right to work in the UK….If a person is not able to produce acceptable documents, you should not assume that they are living or working in the UK illegally. You should try to keep the job open for as long as possible in order to provide them with the opportunity to demonstrate their right to work, but you are not obliged to do so if you need to recruit someone urgently”.

Adhering to the right-to-work check requirements whilst allowing more time for a prospective employee to provide original copies of their documents due to COVID-19 can be a balancing act, especially if time is of the essence. If you are unsure of the best course of action, speak to an Immigration Solicitor who will be able to advise you. Until you have completed the right to work check process, it is essential that you do not employ the individual as you risk employing an illegal worker, which may cause you to lose your sponsor licence.