Carrying out Right to Work Checks: New COVID-19 Temporary Measures

Graeme KirkPartner, Ellisons Solicitors incorporating Gross & Co.

Employers must continue to check the usual prescribed documents to assess an individual’s right to work. However in light of COVID-19, and the inability to carry out checks in the presence of the individual, from 30 March 2020 until the Home Office notifies employers that COVID-19 measures have come to an end, the government have introduced temporary changes to the way Right to Work (RTW) checks can be carried out.

These are:

  • 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.

It remains an offence to knowingly employ anyone who does not have the right to work in the UK. If RTW checks are carried out in accordance with the Home Office guidance, summarised below, the Home Office will not take any enforcement action against an employer.

Conducting RTW Checks Under the New Measures

Under the new measures, employers can carry out RTW checks by:

  • Asking the employee/worker or prospective employee/ worker (the “applicant”) to submit a scanned copy or a clear photo of their original RTW documents via email or using a mobile app. (‘Adobe Scan: PDF & Card Scanner’ is an example of an app available to iOS and Android users which is free to use and converts photos of documents into a PDF file).
  • Arranging a video call with the applicant – asking the applicant to hold up their original RTW documents to the camera and checking the original document on screen against the digital copy of the documents received from the applicant.
  • Recording the date the check is made and marking it as “adjusted check undertaken on [insert date] due to COVID-19”.

If the applicant has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme employers can use the online right to work checking service here while doing a video call – the applicant must give employers permission to view their details.

The usual documents on the Home Office’s RTW checklist here remain the only form of acceptable RTW documents.

Individuals Unable to Show their Documents

Employers must take extra care to ensure applicants are not discriminated against because they are unable to show their documents.

If an applicant cannot provide any of the accepted documents, employers should use this Employer Checking Service:

If the applicant has a right to work, the Employer Checking Service will send the employer a ‘Positive Verification Notice’. This provides the employer with a statutory excuse for 6 months from the date in the notice.

Actions Required Following the COVID-19 Temporary Measures

When the government confirms the temporary measures have ended, employers should:

  • return to following the usual RTW checking process; and
  • carry out the retrospective actions below within 8 weeks of COVID-19 measures ending.

Retrospective Actions:

The usual RTW checks must be carried out by employers on existing employees who:

  • started working for employers during these measures;
  • required a follow-up right to work check during these measures.

This retrospective test should be marked: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

The RTW check carried out under the COVID-19 measures and the usual RTW check carried out retrospectively should be kept.

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.

This article is accurate as at 4 April 2020. Please check our website at Ellisons Covid-19 Business Support  for up to date developments.

For more help or advice with any of these issues please contact any member of the Employment or Immigration Teams.