End of COVID-19 adjusted right to work checks

Published 14 September 2021

Traditionally, employers complied with their duties to prevent illegal working by carrying out right to work checks in person with there being only limited options to carry these out remotely or online. Social distancing rules and Covid-19 made it difficult for employers to continue to do in-person checks in a safe manner and as such, measures were introduced on 30 March 2020 to temporarily allow employers to conduct right to work checks remotely.

The anticipated end to the Covid-19 adjusted right to work checking policy on 31 August 2021 has now been pushed back to 5 April 2022. The new end date reflects wider government guidance on the easing of lockdown measures and means that employers will not have to revert to conducting full right to work checks until 6 April 2022.

 Continuing to carry out Covid-19 adjusted right to work checks

 Although changes have been announced, the Covid-19 adjusted right to work checks can still be used by employers until 5 April 2022 by following these steps:

1. Requesting a clear scanned copy or photo of the worker’s original documents via email or through a mobile app.

2. Once a digital copy has been received, scheduling a video call with the worker to verify the digital copy against their original document. The worker will need to clearly show the original document during the call.

3. Record the date the check was made on the copy and mark it as an adjusted check using the following phrase “adjusted check undertaken on [insert date] due to COVID-19”. Records of each check should be retained in a safe and secure location.
   
   

Carrying out right to work checks after Covid-19 adjusted right to work policy ends

From 6 April 2022, employers will revert to carrying out:

• a manual right to work check using original documents; or
• an online right to work check using one of the online checking services.

The extension to the adjusted right to work policy will be welcomed by many employers who found face-to-face manual right to work checks couldn’t be avoided without the policy. Employers who have been following the government’s roadmap out of lockdown when making plans to open their offices should now be able to align their plans for conducting right to work checks alongside wider business plans.

However, even when the adjusted right to work policy finally ends, there will still be options available to carry out a right to work check remotely:

• Manual checks do require an employer to physically check the documents they are verifying but the worker does not need to be physically present when doing this. If a worker is willing to send their documents by post this will allow for the completion of a manual check via a live video link with the worker.

• If the worker holds a Biometric Residence Permit, Biometric Residence Card, a Frontier Worker permit or a status granted under the EU Settlement Scheme the online check can be used remotely.

Employers must give a worker every reasonable opportunity to prove their right to work. Failing to do so may lead to a breach of the employer’s duty to act in a non-discriminatory manner.

Retrospective checks

It is no longer a requirement to carry out retrospective checks on employees who were hired using the Covid-19 adjusted right to work check between 30 March 2020 and 5 April 2022 (inclusive). As long as the check was carried out in the prescribed manner, employers will have a statutory excuse against liability after 5 April 2022.

If an employer subsequently becomes aware, or has reasonable cause to believe, that any individual has ceased to have the right to work lawfully in the UK, the statutory excuse will no longer apply.

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