A right to work check is essential for an employer to establish a statutory defence against the imposition of a civil penalty for employing an illegal worker (which can be up to £20,000 per illegal worker). The check must be undertaken on all potential employees regardless of nationality or ethnic origin before the employee starts work.
Temporary adjusted right to work check measures have been in place since 30 March 2020 due to COVID-19. This has allowed potential employees to send scanned documents (rather than originals) to an employer by email or a mobile app. The employer has then been allowed to conduct a right to work check by checking the original documents via a video call.
However, these adjusted right to work check measures were only temporary and the Home Office has recently announced that they will end on 16 May 2021.
From 17 May 2021, employers must once again either:
If employers are checking the potential employee’s original documents in person then they must:
When the temporary COVID-19 measures were implemented, the Home Office said that follow-up checks on any employees who had had a COVID-19 adjusted right to work check would need to be carried out within eight weeks of the temporary measures ending. However, the Home Office has now confirmed that these retrospective checks will not be required. Employers will maintain a statutory defence against a civil penalty as long as they did a normal check or a COVID-19 adjusted check at the relevant time.
The government has published a useful guide for employers (including Lists A and B which are set out in Annex A). If you have any queries in relation to right to work checks then please contact a member of the Employment or Immigration team.
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