In person right to work checks now set to return from 1 September 2021

On 18 June 2021, the Home Office released a further update to the Right to Work checks guidance for business’ and their employees during COVID-19. Originally set for 20 June 2021, the temporary COVID-19 adjusted right to work checks will now end on 31 August 2021, following the delayed easing of lockdown measures.

Since 30 March 2020 temporary COVID-19 concessions have been in place to allow employers to complete their right to work checks virtually, reflecting the reality of WFH measures. During this period employers have been allowed to carry out right to work checks over video and check scanned copies of documents, rather that completing these checks in person with original documents.

However, the Home Office have now confirmed this concession will end on 31 August 2021. This means that from 1 September 2021, employers will once again be required to conduct the usual pre COVID-19 right to work checks on their employees on or before their first working day, and for follow up checks before expiry of their documentation.

What should employers do?

From 1 September 2021, employers must carry out right to work checks either by:
1. Checking the potential employee’s original documents in person; or
2. Checking the individual’s right to work online using the Home Office’s online Right to Work checking service if they hold biometric residence permit, or have been granted status under the EU Settlement Scheme or points-based immigration system.
(www.gov.uk/view-right-to-work)

It is important to bear in mind that the online checking service can only be used with the permission of the individual, and employers must be careful not to discriminate against those who refuse to allow access to their records. Furthermore, until the expiry of the EU Settlement Scheme on 30 June 2021, EU employees can choose to give an employer their share code, but are not required to.

Significantly however, employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021. They will maintain a defence against a civil penalty if the check they have undertaken during this period was done in the prescribed manner, or as set out in the COVID-19 adjusted checks guidance.

Challenges

While it is possible that the COVID-19 adjusted measures may be extended again past 1 September 2021, employers should prepare for in-person checks to recommence and review internal processes to ensure they fall in line with this update.

Challenges will of course remain with conducting in-person checks as remote working continues and with the continued impact of COVID-19 some individuals may struggle to show evidence of their right to work or attend in person. Employers should therefore, be mindful to take extra care to prevent discrimination against job applicants or employees because they are unable to show their documents and will need to consider their processes carefully to ensure that right to work checks are undertaken correctly for all individuals before their employment starts. In most cases, this will mean arranging an in-person meeting to carry out these checks before the employee’s start date.

What happens if Right to Work checks are not complied with?

Unfortunately, if employers do not carry out the right to work check correctly they will not have a defence against a civil penalty if the individual is later found to be working illegally. Furthermore, if the employer is registered with the Home Office as a sponsor licence holder, one of the sponsor duties is to ensure that right to work checks are undertaken correctly in relation to all employees and the Home Office could therefore take action if checks are not being undertaken correctly.

Failure to perform right to work checks correctly could result in unwanted Home Office scrutiny and serious implications, including;

- Civil penalties of up to £20,000 per illegal worker;
- Court-ordered closure of businesses;
- Prison sentences for officers involved; and
- Revocation or limiting sponsor licences for businesses.

To view the UK Government’s Guidance on right to work checks please see the link below:
https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

For any enquiries in relation to Right to Work checks please contact Iona Whyte on imw@wjm.co.uk