What is a Right to Work Check?
All employers in the UK have a responsibility to prevent illegal working. An employer would do this by conducting simple Right to Work Checks before they employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.
If an employer conducts the checks correctly, the employer will have a statutory excuse against liability for a civil penalty in the event that they are found to have employed someone who is prevented from carrying out the work in question because of their immigration status. This means that if the Home Office found that an employer had employed someone who did not have the right to do the work in question, but they had correctly conducted Right to Work Checks as required, they will not receive a civil penalty for that illegal worker.
COVID-19 Right to Work Check adjustments
Due to COVID-19, Right to Work Checks have been temporarily adjusted as follows:
- Checks can be carried out over video calls;
- Prospective and existing employees can send their scanned documents or a photo of their documents by email, rather than sending original versions; and
- Employers can use the Employer Checking Service if the prospective or existing employee cannot provide any of the required documents.
In addition to the above, we recommend for completeness that a screenshot of the COVID-19 concession from the Government website is also kept on file.
Post COVID-19 Right to Work Checks
Whilst lockdown has eased in the UK, the above procedure in relation to Right to Work Checks remains in force. However, as soon as the Home Office announce that the COVID-19 concession is no longer being implemented, employers will be required to carry out retrospective checks on employees who started working for their companies as of 30 March 2020. For those who required a follow-up Right to Work Check during this period, this must be carried out within 8 weeks of the COVID-19 concession ending.
The check should also mention the following: “the individual’s contract commenced on [insert date]. The prescribed Right to Work Check was undertaken on [insert date] due to COVID-19”. Both checks should be held on the employee’s records. The Home Office will not take any enforcement action against an employer if they carried out the adjusted check set out above and followed this up with the retrospective check. If, at the point of carrying out the retrospective check, the employer finds an employee does not have permission to be in the UK they must end their employment.
As some employers are returning to their offices, we would recommend that they carry out the Right to Work Checks in the prescribed manner if they are able to do so, instead of waiting for the Home Office to inform employers as to when retrospective checks will be required.
Gherson has over 30 years of experience in assisting with various immigration matters and is monitoring the impact of COVID-19 on all immigration issues closely. We have a specialist corporate immigration team who service the needs of a large number of companies.
If you would like to speak to a member of our corporate immigration team in respect of any of the issues raised in this blog, please do not hesitate to contact us, send us an e-mail, or alternatively, follow us on Twitter to stay up-to-date.
Please note that the information in this blog is current at the date and time of posting. The situation regarding policy and guidance based on the COVID-19 pandemic is subject to change at short notice. We shall be monitoring all aspects of UK immigration which may be impacted by the coronavirus closely, so please do keep updated with further blogs and articles which we will be posting on this site.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2020
Paralegal in our General and Corporate Teams