The Government has (finally) issued some updated Guidance to assist employers with their right to work checks during the corona virus pandemic, something which has been badly needed as the crisis has escalated.
The Guidance states that with effect from 30 March 2020, the following temporary changes have been made to the right to work checking requirements:
- Checks can now be carried out over video calls; and
- Applicants/employees can use scanned or photo copies of documents rather than originals to prove their right to work.
The new Guidance sets out a process for employers to adopt as follows. They should:
- Ask the employee to submit a scanned copy or a photo of their original documents on email or via a mobile app
- Arrange a video call with the employee. Employers should specifically ask the employee to hold their original documents to the camera and check them against the digital copies that have been sent to them.
- Employers should then record the date of the check and specifically mark it as follows: "adjusted check undertaken on [insert date] due to COVID-19".
- If the employee has a Biometric card or EU Settled Status, employers should use the online right to work checking service while doing a video call with the individual (who must give you permission to view their details).
Where documents can not be provided, employers should use the Employer Checking Service.
Importantly, once the crisis has passed, these temporary measures will end, and employers will need to do a further retrospective right to work check in line with the standard process.
This second check must be marked as follows "the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19".
The retrospective check must be done within 8 weeks of the special COVID-19 measures coming to an end to provide the statutory excuse to any allegations of illegal working.
This second check will apply to anyone who has started work during this period or who required a follow-up right to work check during these measures. Both checks need to be kept to establish the statutory excuse.
Where employers have been able to carry out "normal" right to work checks, and have not relied on the temporary COVID-19 measures, they will not need to carry out further checks.
This is helpful guidance as it provides a practical way forwards for employers who have been struggling to carry out right to work checks during lockdown. What is surprising is that it has taken the Home Office quite this long to provide support and guidance to employers on this subject.
Additionally, whilst the suggested alternatives are very sensible, we must not forget that they rely on the employee having access to the relevant technology to be able to send emails, photos etc, which may not be the case, particularly for more vulnerable, less highly paid workers.