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 31 August 2021.
From 1 September 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 updated its useful guide for employers on right to work checks. This includes Lists A and B (which are set out in Annex A (for checks up to and including 30 June 2021) and Annex B (for checks from 1 July 2021 onwards). Annex C has also been updated with information on how EEA citizens can prove their right to work from 1 July 2021 onwards.
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