Right to Work Scheme COVID-19 Adjusted Checks Update

For the UK, at least, it appears that there is a light at the end of the COVID-19 tunnel. Many businesses are starting to return to normal operations, having been impacted by supply, staffing, and financial issues at the height of the pandemic. One change that businesses need to prepare for is the ending of the adjusted right to work check requirements issued by the Home Office on 30^th March 2021. In this article, we will provide an update on the temporary COVID-19 adjusted right-to-work checks.

What Adjustments Were Made To The Right To Work Check Scheme In 2020?

As the COVID-19 pandemic took hold in March 2020, a series of temporary changes were implemented by the Home Office’s immigration enforcement department. The changes were as follows:

• right to work checks could be carried out over video calls
• job applicants and existing workers could send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
• employers were advised to use the Employer Checking Service if a prospective or existing employee was unable to provide any of the accepted documents

The changes also reminded employers that right-to-work checks were still required during the pandemic; “Checks continue to be necessary, and you must continue to check the prescribed documents set out in right-to-work checks: an employer’s guide or use the online right to work checking service. It remains an offence to knowingly employ anyone who does not have the right to work in the UK”.

The temporary guidance advised those carrying out a temporary adjusted right to work check to:

• ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
• arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19
• if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, you can use the online right-to-work checking service while doing a video call - the applicant must give you permission to view their details.

When Do The Temporary Adjusted Right To Work Checks Come To An End?

The temporary adjusted right to work checks come to an end on 20^th June 2021. From the 21^st June 2021, employers will be expected to carry out right to work checks using face-to-face and physical documents checks. As the updated guidance states, reverting back to the standard right to work check process “is aligned with the easing of lockdown restrictions and social distancing measures, as set out in the government’s roadmap for England and those of the devolved administrations”. Employers are required to either check the applicant’s original documents or check the applicant’s right to work online if the employee has provided their ‘share code’.

As of the day of writing this article, there is some uncertainty regarding the next stage of lockdown lifting in June due to the surging variant of concern in some parts of the UK. We will keep you up to date if the face-to-face right to work checks are further delayed for this reason.

The updated guidance for employers also warns those carrying out right to work checks to be careful not to discriminate against individuals who are struggling to find any evidence they require; “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. For more information, please see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working”. The code of practice explains that employers should apply for a statutory excuse (explained below) if the individual being checked is unable to provide the documents required. As such, this is the best way of avoiding the potential for a discrimination claim while ensuring that you are not at risk of employing an illegal worker.

Do I Need To Carry Out Full Right To Work Checks On Employees Who Have Only Had A COVID-19 Adjusted Check?

The government’s stance is that it is not necessary for employers to retrospectively carry out full right-to-work checks on employees who had a COVID-19 adjusted check between 30^th March 2020 and 20^th June 2021 (inclusive). Any employer who has not carried out the adjusted check during this period does risk receiving a civil penalty, however.

Requesting A Statutory Excuse From The Home Office

If you have attempted to carry out a right to work check, but the individual was unable to provide the necessary information, the Home Office advises that you should use the Home Office Employer Checking Service who will provide a ‘Positive Verification Notice’ if the person does have the right to work in the UK. The notice provides a statutory excuse for six months from the date in the notice. Remember, if you are found to be employing an illegal worker, you risk receiving a fine of £20,000.

Final Words

If your business holds a Home Office sponsor licence to enable you to recruit staff from outside of the UK, it is vital that you carry out right-to-work checks in a prescribed way. Not doing so may cause you to lose your licence and, with it, your sponsored workers. Making the adjustment back to the standard protocol from 21^st June 2021 may require internal communication and training to ensure your staff is aware of the change and the correct process to follow.