Updated 18 June: Following the government’s delay on lifting restrictions, The Home Office has updated the Right to Work checks guidance for business’ and their employees during COVID-19.
What does the updated guidance say?
Since 30 March 2020 concession have been in place to allow employers to complete their right to work checks virtually – preventing many employees from attending their work offices as normal.
The Home Office has confirmed this concession will now end on 31 August 2021 and 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 the visa end date. More significantly, 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.
What should employers do?
To prevent compliance risks, it is recommended that employers review their internal processes to anticipate usual Right to Work check processes resuming from 1 September 2021. Scanned and digital copies of original documents will no longer be acceptable and they will not provide a defence against enforcement action. Employers must be presented with the physical document in its original form, unless using the Home Office’s online checking service.
This raises its own challenges, given many businesses are not considering a return to the office any time soon, if at all. Due to the impact of COVID-19, some individuals may struggle to show evidence of their right to work; therefore employers are urged to take extra care to prevent discrimination against job applicants or employees because they are unable to show their documents.
The Home Office’s online Right to Work checking service is available in respect of individuals who hold a Biometric Residence Permit (BRP), or who have been granted status under the EU Settlement Scheme or points-based immigration system. This 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.
What happens if someone is employed who cannot legally work in the UK?
Failure to perform right to work checks correctly could result in unwanted Home Office scrutiny and serious ramifications, including;
- Civil penalties of up to £20,000 per illegal worker;
- Court-ordered closure of businesses;
- Prison sentences for individuals involved; and
- Revocation or limiting sponsor licences for businesses.
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