Employer Right to Work Checks: Updated Guidance July 2021

Why do employers need to conduct them?
UK employers are responsible for preventing illegal working and therefore must carry out right to work checks on all prospective employees to ensure they are not disqualified from work due to their immigration status.

Right to work checks prevent exploitation and labour market abuse, and, if carried out correctly, ensure an employer has establish a statutory excuse against liability for a civil penalty if illegal working is identified.

If, however, an employer who has not correctly checked an employee’s right to work is found to employ an individual without the right to work, the employer will receive a civil penalty and may face further sanctions.

Right to work checks are therefore the responsibility of the employer with whom the contract of employment is, even if the check is carried out by a member of staff.

When should employers carry out checks?
Employers should conduct the right to work check before employing an individual. If an individual’s right to work in the UK is ‘time-limited’, the employer must carry out a follow-up check shortly before it comes to an end.

Refresher: How to conduct a right to work check.
There are two types of right to work checks that will provide an employer with a statutory excuse: a manual document-based check and an online check. Please click HERE to access a short guide to explain how to carry out both types of check.

Changed process for EEA nationals from 1st July 2021
From the 1 July 2021 changes have been made to the list of acceptable documents required to evidence an employee’s Right to work in the UK. The updates remove the requirement of EEA passports, national identity cards and specified EEA Regulations Documents and now include:
- Irish passport and passport card.
- Document issued by the Crown Dependencies Jersey, Guernsey, or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service.
- A frontier worker permit issued under regulation 8 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.

As of 1 July 2021, EEA citizens and their family therefore require immigration status in the UK and their EEA passport of national identity card is no longer acceptable to prove their right to work. Many EEA citizens will therefore use the Home Office online right to work service to evidence their right to work if they made a successful application to the EUSS and have been granted their immigration status digitally. Employers will then be able to follow the online check guidance to obtain a statutory excuse.

From 1 July 2021 some EEA citizens will not have status under the EUSS and the following specified documents are therefore acceptable for evidencing their right to work if they cannot use the Home Office online system.
- Frontier Worker Permits
- Service Provider of Switzerland visas
- Outstanding applications to UK EUSS
- Outstanding applications to Crown Dependency EUSS
- EEA citizens with Indefinite Leave to Enter/Remain
- Points-Based System visas

If an EEA citizen applies for a job after 30 June 2021 without having applied to the EUSS by the deadline and without alternative immigration status in the UK they will not pass a right to work check and should not be employed. They may be encouraged to make an application if believed to be eligible and if an EEA citizen has reasonable grounds for missing the EUSS application deadline, they will be given further opportunity to apply.

There is an additional transitional process to follow until 31 December 2021, to add further flexibility for circumstances where you identify an EEA citizen in your workforce (that has been employed by you, in the UK, prior to the end of the grace period of 30 June 2021) has not applied to the EUSS by 30 June 2021. This means you do not need to cease employment at the time you identify an employee without status if this transitional measure applies.

If you have carried out a right to work check for an EEA citizen who provided their passport or national identity card before 30 June 2021, you will have a continuous statutory excuse against a civil penalty if you carried out this check in the prescribed manner that applied at the time of completing the check.

For more information regarding specific categories of workers you can access more details from the Government Guidance. Please click HERE

Discrimination implications: Right to work Checks
Employers must give employees every opportunity to demonstrate their right to work and should not discriminate based on whether the employee is able to use the online service, to do so may result in breaching the law.

You must not discriminate and right to work checks should be conducted on all potential employees, including British citizens, not just those who appear to be migrants. Employers must not assume an individual’s right to work, or immigration status based on their race, nationality, ethic or national origins, accent, or the length of time they have been resident in the UK.

The ‘Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working’ provides practical guidance on how to avoid unlawful discrimination when right to work checks. Please click HERE

Aside from ethical implications, if a claim regarding discrimination, either direct or indirect, is upheld in an Employment Tribunal, there is no upper limit on the compensation the employer will have to pay so this may have far reaching financial implications.

If you would advice on Right to Work checks please contact a member of the Tamar HR team so we can assist you.