Adjusted Right to Work Checks to End

The end of temporary Covid-adjusted Right to Work guidance has been deferred until 30th September 2022.

The decision was made by the Home Office following the announcement of a permanent digital scheme enabling employers to use certified identity service providers (IDSPs) to conduct remote identity checks for right to work. It is important to bear in mind that UK employers have a legal obligation to comply with the prevention of illegal working legislation, and can face jail or an unlimited fine if found guilty of employing someone who they knew or had ‘reasonable cause to believe’ did not have the right to work in the UK.

Employers can also be penalised if they employ someone who does not have the right to work and they did not conduct the correct checks, or did not conduct them properly. In these circumstances, the employer might receive a ‘referral notice’ to let them know that the case is being considered and that they might have to pay a fine of up to £20,000 for each illegal worker.

Right to Work checks require employers to conduct basic documentation checks on every UK-based employee to verify that anyone employed has the necessary permission to perform the work on offer. IHRS explains how to conduct employer Right to Work checks and the Right to Work documents that your employees should provide.

The Covid-adjusted Right to Work scheme was introduced by the Home Office in March 2020 as a temporary measure that allowed employers to check documents remotely due to lockdown restrictions which meant most office workers were working from home.

This meant that:

• checks could be carried out over video calls.
• job applicants and existing workers could send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals.
• employers could use the Home Office Employer Checking Service if a prospective or existing employee could not provide any of the accepted documents.

We reported in September 2021 that the end date for the scheme had been extended until April 2022. The end of the scheme has again been deferred and will now apply until 30th September 2022 (inclusive).

Any checks that were made under the temporary scheme must have been marked with the following wording, specified by the Home Office: “adjusted check undertaken on [insert date] due to COVID-19.”

A follow-up Right to Work check using the emergency measures should be marked with the following wording: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

Where employers can show that they conducted document checks in line with the full prescribed manner or the Covid-adjusted rules during the period of the scheme (between 30th March 2020 and 30th September 2022 inclusive) they may be able to defend any allegations of illegal working.

Individuals found to be working illegally, and their employers, may face enforcement action. It has also been confirmed by the Home Office that employers will not be required to conduct full or ‘corrected’ checks retrospectively in situations where a Covid-adjusted check had been used between 30th March 2020 and 30th September 2022 inclusive.

For help with ensuring you are compliant with your Right to Work checks, please contact the IHRS team who will be happy to help. Email HRhelp@ihrsolutions.co.uk, call 01604 709509 or visit the website.