UPDATE: In-person right to work checks now return 21 June

12.05.2021

Smith Stone Walters previously reported that the Home Office will be reinstating the requirement for employers to conduct in-person right to work checks, as lockdown restrictions in the UK begin to ease.

The reinstatement has since been delayed from the previous given date of 17 May, and employers will now be able to continue conducting remote checks on their employees up until 20 June 2021.

From 21 June, the temporary adjustments will end and employers will need to revert to face-to-face, physical document checks.

COVID-19 concessions on Right to Work checks

Throughout the pandemic, right to work checks have continued to be a requirement for all employers, but there have been concessions in place to allow these to be conducted remotely.

Since 30 March 2020, employers have been permitted to bypass the usual requirement to conduct manual right to work checks with their employees, and have instead been able to conduct virtual checks over video calls. Job applicants and existing workers have been allowed to send scanned copies or photographs of their documents rather than sending originals. Employers have also been able to use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

However, a return to the pre-pandemic rules means that from 21 June 2021, UK businesses and HR professionals will need to check the applicant’s original documents or check the applicant’s right to work online if they have given you their share code.

What are right to work checks?

All UK employers are required by law to carry out initial right to work checks on staff they intend to hire, in order to prevent illegal working. It is an offence to knowingly employ anyone who does not have the right to work in the UK by reason of their immigration status.

A manual right to work check is conducted in three steps:

Ask to see the applicant’s original documents
Check that the documents are valid with the applicant present
Make and keep copies of the documents and record the date you made the check.

The process of checking the validity of documents must be done in the presence of the employee. This can be done in person or via a live video link.

From 21 June 2021, in both cases you must also be in physical presence of the original documents and must not rely on the inspection of documents via a video call or scanned copies of the document. For businesses operating remotely, this could mean asking your employee or prospective employee to send their original documents to you by courier to enable you to conduct the check with them by video link. More information can be found in the Home Office guidance here.

Do employers need to carry out retrospective checks?

Employers are not required to carry out retrospective checks on their employees who had their right to work check conducted under the adjusted rules between 30 March 2020 and 20 June 2021 (inclusive).

Penalties for non-compliance

Failure to comply with Home Office requirements on right to work checks could result in employers receiving a fine of up to £20,000 per illegal worker and in serious cases, a prison sentence of up to five years. Throughout most of 2020, the Home Office did not issue any right to work fines, but in the last quarter of last year 77 fines were issued.

As lockdown restrictions begin to ease and businesses gradually return to the office, the number of right to work investigations is expected to rise, particularly after 30 June 2021 when EU employees will be required to prove they have the right to work in the UK.

Smith Stone Walters therefore advises employers to take note of the new guidance from 21 June 2021, and to conduct an audit of your existing EU workers to ensure they are aware of the new requirements from 30 June.

Expert support in HR compliance

If you have questions about conducting right to work checks on your employees, or if you require assistance with any other area of immigration compliance, Smith Stone Walters can help.