Legal Issues – Right to work checks

All employers in the UK have a duty to prevent illegal working. This involves carrying out right to work checks on all employees before they start work. Since March 2020 the rules for employers carrying out right to work checks have been relaxed to account for the difficulties caused by the COVID 19 pandemic. For instance, document checks could be carried out over video calls. It also allowed for employees to send scans or photographs of original documents.

This is set to change as of 21 June 2021 when the original rules will be enforced once again. It will not be sufficient to see copies of documents and the originals must be supplied and checked in person. The right to work online checker is also a viable option.

This may cause some businesses difficulties, especially if they remain closed and employees are working from home. One option may be to courier original copies of documents and verify their identity on a video call. However, this does pose some cost and logistical complications.

This does not apply retrospectively so any checks carried out during the period of relaxed rules will not need to be completed again.

Additionally, employers must be mindful of the changing rules regarding immigrants from the European Economic Area (EEA). As of 1 July 2021, employees from the EEA will be required to prove their right to work using the online service rather than their nationality although guidance on this is yet to be released.

Overall, it is essential for employers to have good record keeping systems in place. A copy of the employees’ documentation and the date that it was checked must be retained for the length of their employment as well as for two years after. This is especially important as the penalties for breaking these rules include a civil penalty up to a maximum of £20,000 per employee and criminal convictions with a prison sentence of up to 5 years and an unlimited fine.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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