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From 30 March 2020 until 20 June 2021 it has been permitted for employers to check the right to work of job applicants and existing workers using scanned documents or a photo of documents for checks using email or a mobile app, rather than having to obtain originals.
During this time, it is mandatory to continue to check a person's right to work in the UK using the prescribed documents set out in Right to work checks: an employer’s guide or use the online right to work checking service. It remains an offence where the employer has a reasonable cause to believe that they are employing someone who does not have the right to work in the UK.
From 21 June 2021, employers must either:
- Check the applicant’s original documents, or
- Check the applicant’s right to work online, if they’ve given you their share code.
From 21 June 2021, the organisation must be in physical possession of the original documents and can no longer accept a scan or a photo of original documents. The document check must be carried out in the presence of the holder, either in person or via live video link.
Online right to work checks cannot be completed in all circumstances, but can be used to support checks in respect of those who hold a Biometric Residence Permit, status under the EU Settlement Scheme, British Nationals (Overseas) or frontier workers (this list is not exhaustive). Organisations must take extra care to ensure no-one is discriminated against because they are unable to show their documents. It follows that online checks cannot be mandated, so if a person chooses to present their documents in person, this triggers a manual check.
Unfortunately for organisations who swiftly adapted to remote working and virtual operational models, this may cause a logistical headache where workers are no longer routinely coming into the office. The good news is that retrospective checks have been scrapped on those completed between 30 March 2020 and 20 June 2021 (inclusive). Employers will maintain a defence against a civil penalty if the checks undertaken during this period were completed in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.
This change to right to work checks represents positive action by the Home Office to revert to a stricter pre-pandemic level of compliance. This corresponds with the Government's lifting of coronavirus lockdown restrictions. It could also be a step to encourage compliance ahead of 30 June 2021, which is the deadline for EU Settlement Scheme applications. Fresh guidance regarding this is expected from the Home Office in due course.
For now, we encourage all organisations to update their policies and processes in advance of 21 June 2021.