Employers in the UK have a responsibility to conduct right to work checks on new employees before they start work to ensure that they prevent illegal working.
As a result of Brexit, a new immigration system was introduced called the Settlement Scheme. EU nationals currently have until the 30th June 2021 to apply for settlement if they are eligible to do so.
These new rules mean that there are changes in the way in which employers need to carry out right to work checks for new recruits.
If an employer is employing an illegal worker but they had in fact conducted the right to work checks correctly, they can avoid a civil penalty and will be given something called a ‘statutory excuse’.
Below are a few top tips to ensure that you are prepared for the new rules.
- How should employers conduct right to work checks which are compliant with the new rules?
- The checks must be conducted before the employment begins
- The checks can either be conducted using an online check system or using original ID documents
- The ID checks must be completed in the presence of the holder or video call and
- Employers should retain evidence to show that they have completed the checks
- Do employers have to conduct new right to work checks on existing EEA National Workers?
- If employers have already conducted right to work checks which can be evidenced, you will not have to conduct new checks
- If a business is found to be employing an illegal worker but they can provide evidence of having carried out an adequate check, they will still be able to receive a statutory excuse
- On the other hand, if the employer had not carried out the right to work checks previously, or there are concerns as to whether the checks are compliant with the new rules, they are urged to conduct new checks
- Do employers need to find out whether EEA workers have applied under the Settlement Scheme?
- Employers do not need to find out whether employees have applied under the Scheme before the 30th June as nationals are able to evidence their right to work in the UK. They would do this by providing a copy of their passport or identity card
- It would not be advised for employers to ask for proof of an employee’s application under the Settlement Scheme as to their settled or pre settled status as this could expose the employer to discrimination claims
- Employers should inform their staff that they need to apply under the Settlement Scheme before the 30th June 2021 and explain that if they fail to do this, they may lose their right to work in the UK. You can ask staff to provide you with evidence for your records but they cannot be forced to do so
- What right to work checks shall I conduct for EEA nationals that are recruited after 1st January 2021?
- Employers should still conduct the current right to work checks until the 1st July 2021
- The period between the 1st January 2021 and 30th June 2021 is known as a grace period. This means that employers can still accept passports or ID cards as evidence of right to work
- Do employers need to clarify when an EU national began residing in the UK?
- Employers do not need to clarify this with their employees as only EU nationals who began residing in the UK by 11pm on 31st December 2021 are eligible to apply under the Settlement Scheme
- The Home Office guidance states that employers do not need to find out when EU nationals started residing in the UK
- So long as an employer has conducted a compliant right to work check and they have obtained a statutory excuse, employers are protected from the civil penalty if their employee does not have the right to work in the UK
- How will the right to work checks change in 1st July 2021?
- The Home Office are yet to update their guidance in this respect but it is anticipated that employers will be required to receive evidence from employees of pre-settled or settled status or a visa which permits the employee to carry out the role which they are required to do
- This rule is only expected to apply to new recruits as the retrospective right to work checks for existing staff are not required
- What steps should employers take now?
- Remind your staff that they have until the 30th June 2021 to apply under the Settlement Scheme if they are eligible to do so and, wherever possible, try to encourage them to share the outcome of their application with you
- Ensure that you are familiar with the current right to work check requirements
- Train staff and update any right to work check policies and procedures to ensure that they are comprehensive and up to date so that, if needed, you will receive a statutory excuse
- If you have any inadequate right to work checks, ensure that these are reviewed and updated
If you need any further support in relation to what these new rules mean, please do not hesitate to get in touch. Email us at support@guardianlaw.co.uk.
