Opeyemi Ogundeji, researcher and employment law writer at Croner-i, details the most up to date guidance on right to work checks, including virtual right to work checks.
Within a short space of time, there have been some updates and slight changes to the way right to work checks are conducted, namely that the Government has decided not to end virtual right to work checks just yet and have confirmed some new rules as of 1 July 2021.
What are right to work checks?
To ascertain whether an individual originally from overseas (including the EU) has the right to work in the UK, and to prevent illegal working, employers should carry out right to work checks. In normal times, there are three steps they must complete. These are:
obtain original right to work documents (such as a passport) from the individual
check the validity and authenticity of the documents in the presence of the individual
copy the documents and keep a secure, dated copy which includes the date for follow-up checks.
Alternatively, from 29 January 2019, employers can use the Home Office’s online right to work checking service to carry out immigration checks.
There is a civil penalty in place where the employer can be fined a maximum of £20,000 per worker who does not have permission to carry out the work they are employed to do. Under the civil penalty scheme, an immigration officer who believes the organisation is employing an individual who does not have the correct permission to work can issue a notice imposing the fine.
What changed due to the pandemic?
In 2020, the Government changed the right to work checking process so that employers did not need to meet with staff directly. Under this temporary system, a scanned copy or photograph of documents necessary to prove a right to work should be sent to the organisation via an email or mobile app.
A video call is then arranged with the worker, where they are asked to present their original documents to the camera. These documents are then compared with the digital versions previously sent. The date of this check is recorded and noted as “adjusted check undertaken on [insert date] due to Covid-19”.
Previously, it was expected that employers would need to carry out a retrospective check through the usual method outlined above once this temporary option was stopped; however, the Government has since confirmed that this will no longer be the case.
New rules on right to work checks from 1 July
From 1 July 2021, employers will no longer be able to accept passports and national identity cards from EU, EEA, or Swiss citizens to prove their right to work. There are two types of right to work checks — a manual document-based check and an online check. Either method can be used from 1 July 2021.
Employers should not discriminate on the basis of whether or not an individual is able and/or willing to demonstrate their right to work using the online service. To do so may result in you breaching the law. While employers may choose to encourage use of the online checking system and may support individuals in doing so (eg by providing access to hardware and the internet), they are not permitted to mandate online checks (except where it is the only evidence the individual has because they are on a digital status only route).
If an individual does not wish to demonstrate their right to work using the online service, even if their immigration status or documentation is compatible with the service, employers should do the manual check.
Two lists have been released detailing the documents employers may accept when checking right to work — List A and B. Employers need to recheck the right to work of those individuals who have time-limited permission to work in the UK. This means that employers need to do a follow-up check when the documents provided by the employee for the initial pre-employment check were from List B. List A documents do not need a follow-up check.
An example of acceptable documentation from List A is a passport (current or expired) showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
An example of acceptable documentation from List B is A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.
What’s happening from 31 August 2021?
The temporary provision to conduct these checks virtually is to be discontinued from 31 August onwards (previously 17 May then 21 June), meaning that, generally, in-person checks will need to be conducted. Whilst video calls will still be permitted for this, a crucial difference is that the organisation will need to be sent the original versions of the important documents, not copies, which may cause inconvenience for the employees in question.
The change to this guidance originally caused confusion for employers due to the fact that working from home guidance is not changing. Currently, it is expected that, at least in England, staff will continue to be encouraged to work from home if they can until at least 19 July 2021. This reversion to the usual right to work checking process prior to this date therefore did seem to go against this as it would have resulted in more direct, in-person contact between employers and their employees.
As well as being able to continue to check that employees have the right to work in the UK, employers must now ensure that their processes for hiring and on-boarding new staff are in line with the new 1 July changes. This is very important as non-compliance could lead to penalties.
If employers are found to have hired someone illegally and have not carried out the prescribed checks, they may face sanctions including:
a civil penalty of up to £20,000 per illegal worker
in serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine
closure of the business and a compliance order issued by the court; and more.