Although the pandemic may have resulted in a number of UK employers reducing or altogether ceasing recruitment of late, in many sectors there will have been an increased need to recruit new employees in order to meet demand.

Employers must not forget their obligations to ensure that their employees have the right to work in the UK. These obligations continue to apply, notwithstanding the challenges that the COVID-19 pandemic may present when managing a process that would ordinarily involve face to face contact with staff.

It is unlawful to employ a person who does not have the right to live and work in the UK and/or is working in breach of their conditions of stay. Employers that do not comply with their obligations to prevent illegal working within their business risk incurring significant civil and/or criminal sanctions.

In order to reduce the risk of illegal working in an organisation, employers must carry out appropriate right to work checks for new employees before they begin to work for them, as well as follow up checks for those employees that have limited permission to live and work in the UK.

Recognising the challenges that the COVID-19 pandemic presents for employers that need to carry out right to work checks, which would ordinarily need to be conducted in the presence of the employee, the Home Office has confirmed that from the 30th March 2020, right to work checks can be carried out remotely.

In particular, the Home Office has confirmed that from the 30th March 2020, right to work checks can be carried out over video calls, for example, using Zoom, Skype or FaceTime. In order to conduct a valid right to work check in this way, the employer should:

• ask the individual to submit a scanned copy or a photo of their original documents (usually their passport photo page and a biometric residence permit if the individual is a non-EEA national) by email or using a mobile app;
• arrange a video call with the individual and ask them to hold up their original documents to the camera so that the employer can check them against the digital copy they have been sent; and
• record the date that they conduct the check and note “adjusted check undertaken on [insert date] due to COVID-19” on a copy of the documents.

If the individual has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme, the employer can use the Home Office’s online right to work checking service while doing the video call, but the individual must give them permission to view their details.

Once the temporary COVID-19 measures end, employers will have eight weeks to carry out retrospective right to work checks in the usual way on employees who commenced employment or required a follow up checks whilst these measures were in place. The Home Office will confirm in due course when these measures will end.

On the copy of any documents reviewed as part of the retrospective check, employers should note “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19”. Copies of both checks should then be held on file.

It is important that employers are mindful of the need to ensure that appropriate right to work checks are still being carried out for employees, notwithstanding the pandemic, so that they do not risk incurring the significant civil and/or criminal sanctions that apply where staff are found to be illegally employed.

If you would like to discuss any of the issues outlined in this article in more detail please contact Amy Brokenshire on 01384 327214 or email amy.brokenshire@higgsandsons.co.uk