To take account of the logistical issues associated with conducting Right to Work checks while most people are required to exercise social distancing and remote working, from 30 March 2020 employers are temporarily permitted to adopt a revised process for checking the immigration status of their employees and prospective employees.
The guidance also reminds employers that they must still ensure that no job applicants or employees are discriminated against because they are unable to present proof of their right to work in the UK in person.
The new guidance permits employers to take the following steps:
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.
The Home Office will publish updates on GOV.UK to inform employers when these temporary measures will end. After they have ended you will need to conduct a repeat, retrospective check on existing employees who:
You should mark this retrospective check "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 coronavirus measures ending. Both checks must be kept for your records.
The Home Office will not take any enforcement action against you if you carried out the adjusted check set out above, 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. If the check you have undertaken during the adjusted period was done in the prescribed manner, you do not have to undertake a retrospective check.
The new guidance confirms that if you carry out a check in the manner normally prescribed during this period (ie following the existing employer guidance on conducting Right to Work checks) then a retrospective check is not required.
The existing guidance provides that when you are checking the validity of documents this must be done in the presence of the holder. However, the guidance goes on to confirm that this can be physical presence or via a live video link, provided you are in physical possession of the original documents. For example, an individual may choose to send their documents to you by post to enable you to conduct the check with them via live video link.
Employers should think carefully about whether to suggest that employees or prospective employee send them their original identity documents in the post, partly due to the risk of them being lost, but also because it is debateable as to whether a journey to the Post Office for such a purpose would be permissible under restrictions on movement provisions in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
If the employee or prospective employee has a current BRP or status under the EU Settlement Scheme the applicant can give you permission to view their details online. The newly issued Coronavirus guidance says that you can use that online check while doing a video call to perform an adjusted check and then carry out a retrospective check once this guidance has been withdrawn. However, arguably a retrospective check should not be required because the previously issued guidance already permitted employers to verify workers' identities via live video link. We have sought clarification on this point from the Home Office and will update when we hear back from them.