Are your right to work check records up to date?
Brexit and COVID are making big changes to your employees’ right to work. The Home Office is charging £20,000 fines per illegal employee. Without a strong right to work check record, you could be in danger…
Here is everything you need to know to keep your business covered!
Right to work checks must be done to see if an individual has the right to work in the UK for the role they are being recruited for. These checks need to be made before employment starts, making right to work evidence a reasonable condition for employment. This should be a condition for all employees. Regardless of nationality, ethnicity, accent or length of time they have been a resident of the UK. Assumptions are oversights.
Never assume – always check.
For a successful right to work check you will need to do three things:
- Obtain the individual’s original identity documents.
- Check the documents are valid with the individual present.
- Copy and keep the documents in a safe place and record the date that they were checked.
Don’t know which documents can be accepted as right to work evidence? UK Visas and Immigration define right to work check documents using this document which outlines what documents can be used as evidence and whether they fall into list A or list B:
List A documents tell you if the individual has an ongoing right to work in the UK for the duration of their employment. List B documents are for workers with a limited period entitlement to work in the UK. Rrepeat checks will need to be carried out to ensure these have not expired. Furthermore, List B documents are divided into Group 1 and Group 2. Documents from Group 1 are valid as evidence for right to work until the date of expiry stated on the document. Group 2 documents have a fixed term and are only valid for 6 months.
A successful check must be done on original documents in the presence of the document holder. You must check:
- Photographs and date of birth to see if they are consistent across documents and that they match the appearance of the individual.
- The name given on the document must match the one the indivudal gives you. If there is any difference there must be documents that explain why. (such as marriage or divorce documents or other valid documents evidencing a legitimate change in name).
- Look at the documents’ expiry date, are they still valid?
- What UK government stamps, endorsements, or work restrictions are included in the document? Are these suitable for the kind of work you are offering?
- Look out for authenticity. Is this what such a document usually looks like? Are there any signs that the document be forged or tampered with?
After the check, a keep a record copy of what documents were checked and when. This can be a hardcopy or an unalterable digital copy like jpeg or pdf. You must keep a hard or digital record of the date that the check was made. Checks must be recorded with the following declaration: “the date on which this right to work check was made: [insert date]”.
It is just as important that you store copies securely during the whole period of employment. These should be kept for a further two years after employment ends.
EU nationals already residing in the UK as of the 31st of December 2020 have until 30th of June 2021 to protect their immigration status. This is done by applying for the EU Settlement Scheme to obtain settled or pre-settled status. Regardless of this application these EU nationals can work in the UK until the 30th of June 2021. If an EU national arrived in the UK after 31st December 2020, they do not have the right to work unless they obtain a visa that allows them to do so. Furthermore, these individuals do not have the right to apply for the same settlement status. This means that EU nationals’ right to work status depends on when they arrived in the UK, a detail employers should pay close attention to since illegal employment carries a fine of up £20,000 per illegal employee.
Thorough checks are essential to avoiding penalties, which are more common as the Home Office increasingly conducts spot checks as part of their ‘Hostile Environment’ policy. A proper record of thorough checks is important because if you are unknowingly employing someone illegally, your record serves as a valid statutory excuse. This avoids you the £20,000 civil penalty that could potentially put you out of business. Failing to keep a thorough record puts employers at risk of giving illegal employment knowingly, a criminal offence which could land them up to 5 years in prison or result in an unlimited fine. Because of this, thorough checks are a matter of life or death for businesses, there is no room for oversight.
Temporary changes to right to work checksare in place because of public health measures during the COVID 19 pandemic. These changes include:
- Documents obtained can be scanned copies instead of requiring originals.
- Employers can do checks over video call with the potential employee showing their documents on camera.
- Records of checks need to be time stamped with the alternative phrase “adjusted check undertaken on [DATE} due to COVID-19”
- Prospective employees subject to visas need to check their right to work online through the online checking service (https://www.gov.uk/view-right-to-work) during a video call.
- Once employers are notified that the adjusted right to work procedures are ended, retrospective checks need to be carried out on any employees hired under the adjusted right to work procedures. This check should be marked on the record as “[NAME]’s contract commended with our company on [DATE]. The prescribed right to work check was undertaken on [DATE] due to COVID-19”.
Adjusted right to work proceedures are set to end on the 21st of June 2021. Employers should begin making arrangements for retrospective checks to keep their right to work records up to date.
WRAPPING IT UP
A thorough right to work check includes: obtaining original documents, checking them in person with an appropriate scrutiny regardless of an individual’s background, and keeping a secure and detailed record of document copies and dates that the checks were carried out.
Due to Brexit, EU nationals’ right to work will be affected depending on whether they arrived in the UK before or after the 31st of December 2020. Their right to work status after the 30th June 2021 depends on whether their EU Settlement Scheme is successful.
Employers should remember that extra checks will need to be made on EU nationals as well as retrospective checks on any individual employed whilst adjusted checks were in place during the COVID-19 pandemic. Both are essential for businesses, since being caught providing illegal employment without a valid statutory excuse can result in a £20,000 fine, or worse still an unlimited sentence and up to five years in prison if the employer is found to be giving illegal employment knowingly.
Both of these could spell the end for many businesses’ operations. Knowing how to conduct a right to work check and keeping a record of these checks is indispensable to business owners.
EDIT 26/08/2021: The Government has extended the use of remote right to work checks to the new deadline of 05/04/2022. Additionally, they announced that retrospective checks will not need to be done.