While compliance may have dropped down the risk agenda for many organisations, businesses continue to operate under a duty to conduct right to work checks as prescribed by law. This allows them to rely on a statutory defence in the event of an issue with the working status of any of their employees. If an employer is found to have known, or had reasonable grounds to believe, that an individual did not have valid working status, they risk substantial fines and criminal sanctions.
The latest changes come as the Home Office resumes illegal working enforcement efforts following the temporary suspension of compliance auditing because of the pandemic. It has also recently restarted onsite immigration inspections. To ensure compliance and to avoid Home Office scrutiny, employers will need to ensure their document checking procedures meet two new changes in the right to work regime.
End of Covid-adjusted rules
Since 30 March 2020, employers have been permitted to conduct right to work checks by viewing scanned or photocopied documents, rather than originals. These are referred to as Covid-adjusted checks. Under new guidance issued by the government on 12 May 2021, this concession is to end on 20 June. This replaces previous guidance released on 20 April, which had advised the scheme was ending on 16 May.
For any individuals starting work from 21 June 2021, the employer must once again be in possession of the original documents when carrying out a right to work check either physically present with the individual or virtually using live video (as it was pre-Covid), unless using the Home Office’s online checking service.
Relying on scanned or digital copies of original documents, or viewing the documents via video link, will not be acceptable or provide a defence against enforcement action.
The online right to work checking service is available, but only for individuals with lawful status under the EU settlement scheme or the points-based system, or those with a biometric residence permit or residence card. The individual must also give the employer permission to use this service.
After conducting an online check using the share code, employers must then meet the new employee face-to-face on their first day to confirm the photograph from the online check is of the same person that has attended for work.
In a welcome decision for employers, corrected checks will not need to be conducted retrospectively where a Covid-adjusted check has been used correctly between 30 March 2020 and 20 June 2021 inclusive.
Challenges for employers
Reverting to pre-pandemic rules within a matter of weeks is clearly out of sync with the current prevailing move towards longer-term, or indefinite, remote working. Reinstating the requirement to handle original documents creates practical issues and valid concerns relating to posting and handling original form documents where individuals are working from home.
It is understandable for an HR manager to have concerns about disclosing their personal address and having responsibility for handling an individual’s original documentation from their private residence.
Rather than resuming the old rules, which may have suited the pre-pandemic workplace norms, the Home Office should be taking a more pragmatic approach that meets the increased flexibility of post-Covid working arrangements. For example, why not allow the individual to have their documents certified by a solicitor, with the certified documents then being sent to the employer to check?
Changes affecting EU workers
The second significant, upcoming change to the prevention of illegal working regime comes at the end of the EU settlement scheme transition period on 30 June 2021.
Until 30 June, EU workers can continue to present a valid passport or national identity card to prove their eligibility to work to employers. From 1 July, however, new rules will require the employer to be given evidence of the individual’s status under the EU settlement scheme or proof of an appropriate and valid work-based visa.
Where a document check confirms a time limit applies to an EU national’s right to work in the UK, a follow-up check should be carried out before the expiry date of their permission. This could be, for example, where they only have pre-settled status under the EU settlement scheme or they have been granted limited leave to remain under the points-based system.
As the Home Office resumes illegal working enforcement efforts, employers should prepare for the upcoming changes by ensuring:
- adjusted document checks conducted between 30 March 2020 and 20 June 2021 inclusive have been clearly marked as an ‘adjusted check undertaken on [insert date] due to Covid-19’;
- full right to work checks relying on original documents in physical form are resumed from 21 June 2021 or make use of the online employer checking service;
- individuals are not discriminated against where they do not agree to the use of the online checking service; and
- anyone involved in recruitment and onboarding within the organisation understands the changes taking effect from 21 June and 1 July, and the implications of these when conducting document checks.
Anne Morris is a lawyer and managing director of DavidsonMorris