As all employers are aware, you must check that a job applicant is allowed to work for you before you employ them. This applies to all potential employees, regardless of nationality.
The Home Office sets out specific guidance for what documents are acceptable and how these checks should be carried out, businesses who are found to have employed someone who doesn’t have the right to work can be liable for a civil penalty of up to £20,000 per illegal worker. However, provided the guidance is followed, employers are deemed to have established what is called the ‘statutory excuse’.
Back on 30th March 2020, in response to the pandemic, the Government brought in a temporary change to the guidance that is issued to employers for the checking of individual’s right to work documents.
Since then, employers have been able to use a digital copy (such as a scan or a photo) and verify its validity by a video call, as opposed to having to physically see the original document. Or, in some circumstances where this isn’t possible, employers could use the online checking service.
Checks carried out remotely during this time have been required to be marked as ‘adjusted check undertaken on (date) due to COVID-19’. But, as long as all the other usual guidance has been followed correctly, this has been sufficient to establish the statutory excuse.
It has always remained an offence to knowingly employ someone who doesn’t have the right to work in the UK, with the risk of the civil penalty being applied.
The temporary measure was originally due to end on 16th May 2021, but it was announced on 12th May 2021 - with less than a week to go - that it would be extended up to and including 20th June 2021 - in line with the current roadmap out of lockdown restrictions in England.
Therefore, from 21st June 2021, all employers will be required to revert back to the original guidance for right-to-work verification of physical documents and face-to-face checks (or the online checking service where applicable).
It will come as a huge relief for employers that the Government has announced that they’ll be no requirement to complete retrospective checks on those who underwent the adjusted check during the time the temporary measures were in place (unless only a time-limited excuse was established and a further check is due in any case).
However, reverting to the original guidance at this stage is likely to pose a challenge for employers who are continuing to operate remotely after 21st June. With recruiters and hiring managers still working from home, there are going to be issues to be addressed surrounding the transport and receipt of candidate's original identity documents.
Despite the additional pressures placed on employers during the pandemic, the Government has made it clear that no allowances will be made for failure to uphold the legislation in place for the prevention of illegal working so it’s critical that employers ensure they’re fully compliant.
**Please note this blog is for informational purposes only and is not a substitute for taking your own legal advice**
**Information up to date at the time of publication**