As a result of the ongoing situation with the coronavirus, the Home Office published guidance late on the 30 March, for employers carrying out right to work checks during the pandemic.
As part of this, temporary changes to right to work checks have been made, which come into force immediately. Under these:
- Employees or prospective employees are no longer required to send their original documents. Instead, they must send a scanned copy via email or a mobile scanning
- Employers can then carry out a right to work check over video conferencing as opposed to face-to-face
- During the video call with the employee, the employer requests to see the original ID document and checks this against the digital copy on file
- The employer records the date of the check with the following wording ‘adjusted check undertaken on [insert date] due to COVID-19'
However, where an employee or prospective employee is unable to provide any documents, the employer should continue to use the government’s Employer Checking Service.
It is important to stress that these arrangements are temporary and do not provide a statutory defence against a civil penalty for the duration of an individual’s employment.
Once the Home Office has confirmed that these coronavirus measures have ended, employers must then carry out retrospective right to work checks on existing employees who were either employed when the temporary right to work check measures were in place i.e. from 31 March 2020 or who required a follow-up right to work check and the temporary measures were used for this.
Employers will be given an eight-week grace period to carry out retrospective right to work checks. These retrospective checks should contain the wording ‘the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.’
Importantly, both the initial and the retrospective check must be retained on the employee’s file.
If, during a retrospective check, an employer discovers that the employee does not have immigration permission to work, they must end their employment. However, the Home Office has stated it will not take any enforcement action against those who carry out the temporary right to work checks correctly.
These new temporary arrangements and will need to be regularly monitored. Employers should also regularly check the Home Office website for updates.