Temporary updates to the right to work checks

The government has amended its requirements on how a right to work check may be carried out during the Coronavirus (COVID-19) outbreak. These are temporary measures making them easier to be carried out by the employer. As of 30 March 2020 the following temporary changes have been made:

  • 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

As we know it remains an offence to knowingly employ anyone who does not have the right to work in the UK therefore, checks continue to be necessary and you must continue to check the prescribed documents listed in right to work checks: an employer’s guide

Discrimination due to temporary rights to work checks

Following the temporary updates to the rights to work checks, some individuals may be unable to evidence their right to work. During these unprecedented times, you must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show you their documents.

For further information on these matters, please see the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.

Conducting a right to work check during the temporary COVID-19 measures

  • Ask the worker 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 worker – 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 mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker 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 applicant must give you permission to view their details

If the job applicant or existing worker cannot show their documents

You must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’. This provides you with a statutory excuse for 6 months from the date in the notice.

After the COVID-19 measures end

Post Coronavirus pandemic, the Government has said that they will let people know in advance when these measures will end. As after that date, you should follow the checking process set out in right to work checks: an employer’s guide. This is something which should be seen as standard and is something the team here at Cluer are more than happy to advise you on should you require our assistance. 

You will be asked to carry out retrospective checks on existing employees who started working for you during these measures, and/or required a follow-up right to work check during these measures. 

These checks are important records and need to be stored and written correctly. You should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.” On top of this, the retrospective check must be carried out within eight weeks of the COVID-19 measures ending. 

Just to be clear, the Home Office will not take any enforcement action against you if you carried out the adjusted check set out in this guidance, or a check via the Home Office, and follow this up with the retrospective check. If, at the point of carrying out the retrospective check, you find your employee does not have permission to be in the UK you must end their employment. 

Finally, if the check you have undertaken during the adjusted period was completed in the prescribed manner, you do not need to undertake a retrospective check.

We understand things are ever evolving due to these unforeseen circumstances, with multiple updates emerging daily should you require any additional information, please don’t hesitate to get in touch with the Cluer HR team on 01386 751740 or email  [email protected].

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