Right to Work update: checks in the time of coronavirus

Written on 2 Apr 2020

The Home Office has published new guidance (30 March 2020) on how employers may conduct Right to Work checks given the government advice for workers to remain at home. While it remains an offence to knowingly employee an illegal worker – with fines of up to £20,000 per illegal worker – a statutory defence will exist where you conduct checks in accordance with the new policy.

This announcement is very welcome to help businesses during the coronavirus and now permits the following:

  • Copies of documents, either scans or photographs, may be submitted rather than the receipt of originals.
  • Verification can be organised over a video call with the worker.
  • Documents must be certified stating "adjusted check undertaken on [date] due to Covid-19" and signed in the usual way.

If a worker has a Biometric Residence Permit then online checks can still be conducted while on the video call with the individual as employers must be able to confirm the photo on the online record is the same person the one they are speaking to.

If a worker is unable to provide any of the prescribed documents, employers may also still obtain a six-month statutory defence by conducting a check through the Employer Checking Service. During this period, it is more important than ever to also ensure that discrimination is avoided against a worker and we encourage employers to make sure they refer to the code of practice for employers: avoiding unlawful discrimination while preventing illegal working.

It is also clear from the new policy that all checks conducted under this new procedure will need to be reviewed in accordance with the normal procedures within eight weeks of the Home Office announcing an end to these Covid-19 measures. No date is currently set but employers will need to ensure they monitor the situation and conduct retrospective checks as soon as is practicably possible.

We therefore advise that where possible, checks continue to be carried out in accordance with existing policy, but where this isn’t possible, the new procedures may be followed to ensure compliance.