As businesses will be all too aware, there are serious implications for employing individuals who are not legally entitled to work in the UK. The penalty starts at £20,000 per employee for unwittingly employing someone unlawfully, and moves to an unlimited fine and possible imprisonment of directors if a business knows or has reasonable cause to know it is doing so. So in any view it is serious stuff.
However, employers can secure a "statutory excuse" to protect themselves against such fines and penalty by simply carrying out a right to work check before commencement of employment, and again at the extension of any time limited permission.
How are the checks currently carried out?
The checks can be carried out online with the Home Office or manually. The latter involving checking the original required document(s) in the presence of the holder with a copy then taken and certified appropriately. This is where the difficulty has recently arisen, where the online checks are not available, but social distancing in respect of Covid-19 still needs be observed. The Home Office has therefore temporarily relaxed the rules (with effect from 30 March 2020).
The previous ability to carry out the check by video link (provided the employer has the original documents in its possession) is now being extended as follows:
- The worker may now submit a scanned copy or a photo of their original documents via email or using a mobile app
- The digital copy must then be checked during a video call
- A record of the check must be made and marked “adjusted check undertaken on [insert date] due to COVID-19”
What about when these measures end?
The Home Office will advise in advance as to the date these measures will end. Employers must then within eight weeks of the stated end date carry out retrospective checks on employees who started work during these measures, or whose follow up checks were due during this period. This check must be done in compliance with the standing guidance. A record of this subsequent check should be recorded and marked “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.” Both checks must then be retained on file to ensure the statutory excuse is preserved.
For those employees who are unable to provide the requisite documents in any event, recourse should then be made to the Home Office Employer Checking Service, having first obtained the migrant's permission to do so.
This temporary flexibility on the part of the Home Office will be welcomed by many employers who until this week were faced with weighing up the logistical difficulties of compliance to the risk of fines and penalties.
If you would like any further information with regard to the issues raised in this update, please do not hesitate to get in touch with John Dorney.