All employers in the UK have a duty to prevent illegal working and employers must check that a job applicant is allowed to work for them, before employment commences. If the correct Right to Work checks are not undertaken, then an employer can be fined up to £20,000.00 per illegal migrant worker. The Right to Work check is fairly straightforward. An employer is required to ask to see the applicant’s original documents; check that the documents are valid with the applicant present and make and keep copies of the documents and record the date the check was made.
If the employer conducts the appropriate checks, then they will have a statutory excuse against the imposition of a Civil Penalty in the event that they are found to have employed an applicant who is prevented from carrying out the work in question, because of their visa restrictions.
Following the Covid-19 pandemic, the Home Office have temporarily adjusted the Right to Work checks and this change took effect from 20 March 2020, just before the Prime Minister announced the national lockdown.
The current position of the Home Office is that:
- Checks can be carried out over video calls.
- Prospective and existing employees can send their scanned documents or a photo of their documents by email, as opposed to providing original documents.
- Employers can use the Home Office Employer Checking Service (ECS), if the prospective or existing employee cannot provide any of the required documents or required combination of documents.
Whilst the national lockdown has ended and regional lockdowns are being introduced for locations where there has been a spike in Covid-19 cases, the temporary provisions above still remain in force. Once the Home Office announce that the Covid-19 concession is no longer being implemented, employers will be required to carry out retrospective checks on employees who commenced working for them as of 30 March 2020. In connection with those employees who required a follow-up Right to Work check during this period then, this must be carried out within 8 weeks of the Covid-19 concession coming to an end.
Employers should be aware that, if at the point of carrying out the retrospective check, they discover that their employee did not have permission to undertake the type of work in question, then they must end the employee’s employment. Seeking specialist employment law advice can also be important in such circumstances.