As a result of the restrictions in place due to the COVID-19 pandemic, employers have faced challenges in carrying out right to work checks, which usually require in-person sight of the individual’s original passport or biometric residence permit. Thankfully these challenges were acknowledged early on by the Home Office which introduced temporary measures on 30 March last year. These adjusted right to work checks allowed employers to:

• ask the candidate or employee to submit a scanned copy or a photo of their original documents via email or using a mobile app (rather than their viewing the physical originals); and

• on a video call with the candidate or employee, ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date on which the check was done and mark it as “Adjusted check undertaken on [insert date] due to COVID-19”.

Alternatively (outside these temporary measures), if a candidate or employee has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system, the employer can currently use the online right to work checking service during a video call with him/her – the applicant must give the employer permission to view their details.

These measures have allowed employers flexibility when checking and recording the individual’s right to work in the UK whilst also providing a ‘statutory excuse’ against any potential illegal working claims.

On 20 April this year, the worst of the lockdown now hopefully behind us, the Home Office confirmed that these temporary measures will come to an end on 16 May 2021. Therefore, from three weeks’ time, employers must do one of the following to complete a right to work check:

• have sight of and check the individual’s original documents (e. as required before 30 March 2020); or

• check the individual’s right to work online(if they have provided their share code).

The Home Office has acknowledged that even after 16 May it will not always be possible for an individual to show their original right to work documents due to the continued impact of COVID-19 and advises employers to take care not to discriminate against individuals in such circumstances. The Home Office directs employers to its code of practice for employers on avoiding unlawful discrimination while preventing illegal working. However, this document was drafted in 2014 and so obviously makes no reference at all to avoiding discrimination in COVID-19 related circumstances.  Employers unsure as to whether they can continue to carry out adjusted right to work checks where the relevant originals are unavailable due to COVID-19 or concerned by the risk of a discrimination claim if they get this wrong should seek further advice from an immigration lawyer with employment law expertise.

No Need for Retrospective checks 

The Home Office has helpfully clarified that employers will not be required to conduct retrospective checks on those individuals who were subject to adjusted right to work checks between 30 March 2020 and 16 May 2021 (when the temporary measures were originally introduced, the Home Office had indicated that such checks would be needed). As such, employers will maintain a defence against a civil penalty if the right to work checks they carried out between these periods were done in line with the guidance in place at the time of the checks.

With 17 May fast approaching, employers are urged to re-familiarise themselves with the appropriate pre-COVID right to work check processes to avoid potential civil penalties.

Employers may also find our commentary on right to work checks for EEA/Swiss employees during the grace period prior to 1 July 2021 helpful.

Royce Clemente contributed to this article.