COVID-19: new guidance for adjusted manual right to work checks
31 March 2020
Following the outbreak of COVID-19 and consequent self-isolation and social distancing measures, some employers may be unable to comply with the manual right to work check process. As employees are increasingly unable to attend the workplace and postal services may be delayed or difficult to arrange, some prospective employees are unable to provide employers with the original documents before they commence work to enable a compliant manual right to work to be taken.
We set out below the most important information on right to work checks for UK employers to be aware of during the COVID-19 pandemic.
Online right to work checks
For ease, we advise where permissible that employers use the online right to work process. Currently, this process can be used by those who hold:
• a Biometric Residence Permit;
• a Biometric Residence Card; or
• status under the EU Settlement Scheme.
Manual right to work checks
If the employee does not fall into one of above groups or if the employer prefers, the right to work check can be conducted manually.
Normally a manual right to work check involves the employer checking prescribed physical documentation to confirm the employee has the right to work in the UK and keeping a record of this check in a prescribed manner.
The COVID-19 outbreak has meant that for many it is no longer possible to attend the workplace or provide physical documentation, preventing the usual manual right to work check from being conducted. However, the Home Office has confirmed that right to work checks are still necessary for an employer to be able to establish an excuse against liability to pay a civil penalty for employing an illegal migrant worker.
The Home Office has now issued new guidance on adjusted measures for manual right to work checks during the COVID-19 pandemic. As of 30 March 2020, manual right to work checks may be conducted in the following manner:
• checks on the prescribed documents can now be conducted via video call;
• prior or during the call, the employee should send a scan or photo of the prescribed document(s) via email or mobile app, rather than sending originals;
• during the call, the employee must hold his/her original document up to the camera – the individual conducting the check must check the original document against the digital copy of the document and be satisfied that the relevant document is genuine and valid;
• the individual conducting the check must record the following wording on both sides of the scan or photo: ‘adjusted check undertaken on [insert date] due to COVID-19 by [insert full name]’.
Employer Checking Service
If the employee cannot evidence their right to work in the UK via a manual or online right to work check, there are some circumstances where it may be possible to use the Employer Checking Service.
End of adjusted manual right to work measures and retrospective checks
The Home Office will inform everyone in advance of the date these adjusted measures will end. Within eight weeks of this end date, retrospective manual right to work checks will be required to be undertaken on all employees who either started working or required a follow-up check from 30 March 2020 (i.e. anyone who an adjusted right to work check was undertaken for under the temporary COVID-19 measures).
This retrospective check should be undertaken in the usual prescribed manner, with the following additional note: ‘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 will not be required if the initial right to work check was carried out in the usual prescribed manner. Employers should keep records of both the adjusted right to work check and the retrospective check.
The Home Office has confirmed that it should not take any enforcement action against employers who carry out the adjusted manual check and follow this up with the retrospective check. If, at the point of carrying out the retrospective check, the employer identifies that their employee does not have permission to be in the UK, the employer must end the employment.
If you would like further details on any of the information above or have any other UK or US immigration queries following the COVID-19 outbreak, please contact your assigned LDI lawyer or contact us at enquiries@lauradevine.com.
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