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COVID-19: New temporary Right to Work measures

Graeme Kirk, Partner and Head of Immigration – Ellisons Solicitors incorporating Gross & Co

When it comes to employment, the current coronavirus pandemic has resulted in a lot of uncertainty amongst both employees and employers. Many employees are working from home, being placed on furlough leave or facing redundancy. There is also, of course, the key workers who are continuing to work.

One specific group for which there is particular concern is foreign nationals currently living and working in the UK.

Without a doubt it is a worrying time for them. They are separated from their loved-ones back in their home country, and are worried about their health; and they are concerned about their own health and livelihood, especially if their visas are about to expire. They are facing the very real possibility of being left without a job, and being unable to return to their native country.

Due to the coronavirus outbreak – otherwise known as COVID-19 – employers are currently unable to carry out the usual Right to Work (RTW) checks in the presence of the individual, as they normally would. In light of this, the government has introduced some temporary changes to the way RTW checks can be carried out so they can be conducted remotely. This is something which will be in place until the Home Office notifies employers that the COVID-19 measures have ended.

These new measures will still enable employers to continue to conduct the necessary checks in accordance with UK employment law. They can be completed by:

  • Asking the applicant (either an existing or prospective employee) to submit a scanned copy of the original following documents, via email or using a mobile app: biometric residence permit, biometric residence card, passport or national identity (NI) card (if they have settled or pre-settled status). If the applicant is an EU, EEA or Swiss national, they can continue to use their passport or NI card as proof of their right to work in the UK until June 2021.
  • Arranging a video call with the applicant and asking them to show their original documents to you, so you can cross reference them with the digital copies received to ensure everything is in order and compliant. Applicants with a current Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme can also use the online right to work checking service during a video call, although they will need to give employers permission to view their details.
  • Recording the date of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.

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

If an applicant is unable to provide the necessary documents, employers should use the government’s Employer Checking Service.

Before you begin using this service, you must gain permission from the applicant to make the check and provide the following information:

  • The applicant’s full name, home address, date of birth and nationality
  • The applicant’s job title and hours worked per week
  • Home Office reference number or case ID (if they have either)
  • The applicant’s original Application Registration Card or Certificate of Application, if this is what you’re checking
  • Your business name, business type and contact information

If the applicant has a right to work in the UK, the Employer Checking Service will send a ‘Positive Verification Notice’, which will provide you with a statutory excuse for six months from the date in the notice.

Despite the changes to the process of carrying out RTW checks, it is important for employers to note that it remains an offence to knowingly employ anyone who does not have the right to work in the UK. It is also imperative to bear in mind that these measures are only temporary. Once the government confirms that these measures have ended, employers should return to following the usual process for Right to Work checks.

Employers will also need to carry out retrospective actions (the usual RTW checks) within eight weeks of the COVID-19 measures ending. These retrospective actions will only apply to applicants who started working during the temporary measures, or to applicants who required a follow-up check during this period. Once these additional checks have been completed, it 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.” I would also recommend that employers keep documentation of the checks carried out under the COVID-19 measures as well as the usual RTW check.

If, at any point during the temporary or retrospective checks, you find that an employee does not have permission to be in the UK, you must end their employment.

 

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