Checking an employee's right to work – getting ready for post-lockdown recruitment

Updated June 2021

As a result of the UK Government announcing a delay to the lifting of remaining lockdown restrictions until 19 July 2021, the Home Office has once again announced that the temporary changes to right to work checks will be extended, (see more information below) with such checks now due to end on 31 August 2021.

This now means, that from 1 September 2021, standard right to work checks must be carried out (which includes being in possession of the original documents for the purposes of right to work checks).

Guidance released by the Home Office in relation to this latest extension of adjusted checks, notes that in an effort to support business during this period, there is no requirement to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021 (inclusive).  As noted in below, substantial fines (of up to £20,000 per illegal worker) could be incurred as a result of failing to comply with right to work checks, and employers need to be mindful of their obligations in this regard.

What do employers have to do?

UK employers have an obligation under the Immigration, Asylum and Nationality Act 2006 to check that current and prospective employees have permission to work in the UK.

Last year, at the beginning of the Covid-19 pandemic, the Home Office implemented temporary adjustments allowing for different means to confirm an employee’s right to work. These changes were designed to make it easier for employers to carry out right to work checks in light of the challenges posed by the pandemic. These changes included the use of video calls to check documents, together with allowing receipt of copies rather than originals.

On 20 April 2021, the Home Office announced that the temporary adjustments would be coming to an end as of 16 May 2021, and the ways to check an employee’s right to work would be reverting to the methods used pre-pandemic. As a result of pressure from professional bodies, the Home Office announced that they are extending the adjusted check process up to 20 June 2021 and this has now been stretched to 31 August. The essential parts to pre-pandemic methods required examination of original documents, a review of their validity and retaining a copy of the documents with a date they were checked. The alternative was (and remains) to use the online checking platform if the employee has a share code.

The Home Office has confirmed that employers do not need to re-do checks on employees that were undertaken between 30 March 2020 and 31 August 2021, as long as any checks done in that time were completed according to the COVID-19 adjusted guidance.

Why it is important to check an employee’s right to work

The importance of checking an employee’s right to work will be well known to all businesses, but it’s worth remembering that with Brexit, the landscape has changed and where the employment of an individual takes place and that person does not have permission to work in the UK, civil and criminal penalties, with fines of up to £20,000 per illegal worker, can easily occur.

It will be important, therefore, to readjust vetting methods from 21 June 2021 to ensure that the statutory defence to illegal working can be obtained. By way of final reminder, employers need to be mindful of avoiding discriminating when carrying out the necessary checks. All job applicants should be treated in the same way at every stage of the recruitment process, to best negate any risk arising.

Get in touch

If you’ve any queries about this, or any other employment related matter that could affect your business, our team of specialist employment lawyers can assist.