The Home Office has issued new guidance for employers in response to the coronavirus outbreak. Lawyer Anne Morris explains what the new rules mean for employers.
With the UK on full lockdown and people working from home wherever possible, standard business practices requiring face-to-face contact, such as Right to Work ID checks, are proving challenging.
Under normal circumstances, onboarding processes can take anywhere between a few days to a month to complete. The COVID-19 crisis is making that approach unworkable. Supermarkets for example are asking people to turn up to job interviews with their ID so they can be hired on the spot, and because of the lockdown, some employers are looking at if and how they can still onboard without meeting new recruits in person.
In response, the Home Office has released new temporary guidance to make it for easier for employers when onboading new workers during the crisis.
Right to Work emergency measures
With effect from 30 March 2020, Right to Work checks can now be made by video link. Workers can submit digital copies of their documentation rather than submitting originals.
If the individual cannot provide an acceptable form of documentation, the employer is to use the Home Office’s online Employer Checking Service.
Beyond these emergency measures, the Right to Work regime remains intact.Failure to perform Right to Work checks correctly can open up employers to Home Office enforcement action. Employers found to be employing workers illegally face fines of up to £20,000 per illegal worker and can see their sponsor licence and ability to hire non-EEA workers impacted.
Performing adjusted Right to Work checks during the COVID-19 crisis
Right to Work checks have to be conducted on all new employees, irrespective of nationality and without discrimination.
While those businesses that remain open can ask for identification in-person, such as local shops, employers whose workplaces have closed due to the lockdown can under the new temporary rules ask the worker to send a scan or photograph of their document electronically.
Once received, the employer would need to verify via video link that the individual is the same person as per the ID, and request that the individual show the original document during the video call.
Copies and records would then need to be made and kept in the usual way, with the addition of marking up the following: “adjusted check undertaken on [insert date] due to COVID-19”.
Online Right to Work Service
An alternative solution is for employers is to make use of UKVI’s Online Right to Work Service to perform remote checks and verify a new employee’s immigration status.
This should be supported by a video link to assess if the individual in question is the same person on the photograph on the online right to work service.
If the employer is satisfied the individual seen by the employer via the video link is the same person as on the online right to work photograph, this would provide a statutory excuse against a penalty if it came to light the individual was working illegally.
The downside to this approach is that it is only available to certain individuals. This includes migrant workers with a biometric residence permit (“BRP”), a biometric residence card or pre-Settled Status or Settled Status issued under the EU Settlement Scheme. The worker also has to give their permission for the employer to view their details.
To use the online checking service, the individual will need to register and provide the employer with a “share code”. The employer can then use the share code together with the individual’s date of birth to access their details, view the photograph on the online Right to Work record and verify that this is the worker presenting themselves for work.
Employers should arrange to conduct the online check while on a video call with the individual in order for a simultaneous check to be performed against the online record.
The employer should also check that the individual’s visa is still valid and that they are permitted to carry out the work in question.
The employer should then make and keep a copy of the online Right to Work check by printing or taking a screenshot of the record and storing this securely either electronically or in hard copy. Sign and date the record to keep on file if there is no date on the print out.
Also remember to note and diarise the end date of the visa for any follow up checks that may be required.
After the crisis
The Home Office has advised that this is a temporary measure and that notice will be given when the original regime will resume.
This will also mean employers will have to perform retrospective checks on existing employees that were onboarded using these measures and those that require a follow-up Right to Work check during these measures. The latter should be marked as: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
Retrospective checks must be carried out within 8 weeks of the temporary measures ending, with records of both checks retained.
Retrospective checks will not be needed for individuals who have been subject to a full check in the prescribed manner.
The Home Office has also confirmed it will not take any enforcement action against employers that conduct an adjusted check and follow this up with the retrospective check.
Anne Morris is a lawyer and managing director at UK employer solutions law firm, DavidsonMorris, specialists in employment & immigration law and HR & global mobility consultancy.