Many HR teams and those normally responsible for carrying out right to work checks are working remotely. However, in order to maintain compliance with UKVI policy, right to work checks must continue, presenting logistical problems for many employers.
What help has been given to employers to deal with these problems?
There was a significant delay between lockdown and a change in UKVI policy, but this has finally now been rectified.
The following temporary changes have been made to assist employers carrying out right to work checks at this time:
- checks can now be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
Checks continue to be mandatory and employers must continue to check the prescribed documents listed in Right to work checks: An employer’s guide. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
Because of COVID-19, some individuals may be unable to evidence their right to work. During this period, employers must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show their documents.
How to conduct a right to work check under the temporary measures
- Ask the employee to submit a scanned copy or a photo of their original documents via email or using a mobile app.
- Arrange a video call with the employee– ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
- Record the date you made the check and write on it “adjusted check undertaken on [insert date] due to COVID-19”.
- If the employee has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme you can use the online right to work checking service while doing a video call - the individual must give you permission to view their details.
What if the job applicant / existing employee cannot show their documents?
Employers must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send the employer a ‘Positive Verification Notice’. This provides the employer with a statutory excuse for 6 months from the date in the notice.
Actions to carry out when restrictions are lifted
The UKVI will inform us when this the temporary changes outlined above are likely to end. After that date, employers must revert to following the checking process set out in Right to work checks: An employer’s guide as before.
Employers will also be required to carry out retrospective checks on existing employees who:
- started working for them during these measures; or
- required a follow-up right to work check during these measures.
Employers must then write on this document: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
The retrospective check must be carried out within 8 weeks of the COVID-19 measures ending. Both checks should be kept as part of the employer’s records.
The UKVI will not take any enforcement action against an employer if they carried out the adjusted check as detailed above and then followed this up with the retrospective check once the temporary measures came to an end.
If, at the point of carrying out the retrospective check, the employer finds that the employee does not have permission to be in the UK the employer must end their employment immediately.
It is worth noting that if an employer has still been able to carry out the right to work checks as normal during this period they will not be required to carry out the retrospective right to work checks once the temporary measures come to an end.