Coronavirus (COVID-19): right to work checks

It is good news this week for HR professionals as on 20 April the Home Office published updated guidance on Right to Work checks. The Home Office has confirmed that the current regime of adjusted Right to Work checks, as has been permitted throughout the pandemic, will continue in place until 16 May.

From 17 May 2021 the COVID-concession for Right to Work checks to be undertaken remotely will end and employers will be required from this date to either:

1. resume checking original hardcopy documents when verifying an employee’s right to work in the UK or 
2. to use the online Right to Work checking service by way of share code from the employee.

Importantly, the Home Office has confirmed that employers will not be required to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 16 May 2021 (inclusive). Employers will maintain a defence against a civil penalty if the check they had undertaken during this period was done in the prescribed manner, as set out in the COVID-19 adjusted checks guidance. This is welcome news for many employers who have continued to recruit throughout the pandemic and / or have seen an increase in staff turnover post-Brexit.

We recommend that employers do review the checks and on boarding process that they have been following to ensure that they have been undertaken in line with Home Office guidance. Specifically, it is important that as well as receiving scanned copy documents, that a video call was also held with the individual. On the video call, the employee should be asked to show their documents to the camera so you can confirm that it matches the scan copy received and you must also verify that their appearance matches the documentation. Failing to hold the video call is a common oversight but could prove costly as employers will only have a statutory protection against illegal working penalties if the check has been undertaken fully in line with the Home Office requirements.

Another common error is the failure to endorse the documentation kept on file sufficiently. Records held should also make it clear the date on which you conducted the check. This can be by either making a dated declaration on the copy or by holding a separate record – we recommend that the date the check is made is written on the document copy as follows: “adjusted check undertaken on [insert date] due to COVID-19”. The Home Office advises that: “Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken”.

The above points may appear to be minor but could be deemed by the Home Office to be sufficient that the business does not benefit from any statutory protection; therefore precision in how the checks are undertaken is essential.

These articles are from the April 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Sacha Wooldridge or another member of Birketts’ Immigration Team.