COVID-19 update: Right to Work Checks in the coronavirus pandemic

By Vibha Angre, Legal Intern

This update took place following the UK government’s announcement on 14 June 2021 to extend the date of easing the lockdown restrictions. This extension means that the COVID-19 adjusted right to work checks will now end on 31 August 2021 as opposed to its initial date of 30 June 2021. 

What are the COVID-19 adjusted right to work checks? 

The Home Office on 30 March 2020 made temporary adjustments to the right to work checks with the outbreak of the coronavirus (COVID-19) pandemic; these adjustments are to be in place until 31 August 2021. 

The adjustments include: 

• Right to work checks to be carried out over video calls;
• Scanned documents or photos of documents sent via emails or mobile apps are encouraged over the physical form of the documents. 
•  Employer Checking Service should be used by employers while checking the right to work of employees who cannot provide any of the accepted documents.

   

Even with the coronavirus (COVID-19) pandemic, right to work checks are mandatory and employers should use the right to work checks: an employer’s guide as a reference to the accepted documents and are also encouraged to use the online right to work checking service. An employer who knowingly employs someone who does not have the right to work shall face a civil penalty

How do I check an individual’s right to work under the current adjustments? 

If you are carrying out a right to work check under the current temporary adjustments, you must conduct the check as mentioned below: 

• Digital Copy Check: Checking the scans or photographs of documents sent by the individual. 
• Video Call Check: The worker must hold their original documents to the camera and you must check these against the digital copy that they previously sent to you. Once this video call check has taken place, you must mark the date as “adjusted check undertaken on [insert date] due to COVID-19.” 
• BRP/BRC/EUSS Check: If the individual has either a Biometric Residence Permit or Biometric Residence Card or has a settlement status under the EU Settlement Scheme, you can use the online right to work checking service while conducting your check via video call. Please note that the applicant must give you permission to view their details. This check can also be used for those who have status under the points-based immigration system.

   

What is the new system of conducting right to work checks from 1 September 2021?

With the temporary COVID-19 right to work checks coming to an end on 31 August 2021, a new system of checks will be incorporated on 1 September 2021. The new measures are: 

• Physical Checks: Employers will revert to a physical check of the applicant’s original documents to be conducted face-to-face. Employers will have sufficient notice to facilitate the face-to-face checks. 
• Share Code Checks: Employers can check the applicant’s right to work online provided the applicant has a share code.

   

Is there a need to carry out retrospective checks? 

If an individual has had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021, then you are not required to carry out retrospective checks for them. Any checks done in the prescribed manner or the methods set out in the COVID-19 adjusted checks guidance during this period serve you as a defence against a civil penalty.

What if the applicant or existing worker cannot show their documents for online checks? 

In the event an individual cannot show their right to work documents, then you may contact the Home Office Employer Checking Service. You will receive a “Positive Verification Notice” if the person has the right to work in the UK. Using this service gives you a statutory excuse for 6 months from the date in the notice. 

Discrimination 

Employing an individual who does not have the right to work in the UK can cost you a civil penalty. However, some employees may find it difficult to show evidence of their right to work in the UK due to the impact of COVID-19. Employers must take extra care to ensure no one is discriminated against because they are unable to show their right to work. To avoid discrimination employers should see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.