Every employer in the UK has an obligation to ensure that their workers/employees have the right to work in the UK.
Right to work checks should be conducted before the employment commences and, if conducted correctly and evidenced, will provide the employer with a statutory defence to illegal employment action against them.
EU citizens who reside in the UK on or before 31 December 2020 have the right to work in the UK until 30 June 2021 and can apply to remain and work in the UK post Brexit via the EU Settlement Scheme.
The onus to apply to remain in the UK via the EU Settlement Scheme is on EU workers.
Employers cannot force existing EU workers to apply, but they can encourage them to do so and provide information and support.
The Home Office Guidance warns employers, “You have a duty not to discriminate against EU, EEA or Swiss Citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.”
However, employers can ask the date the individual arrived in the UK to understand if this was on or after 1 January 2020.
EU citizens who arrive in the UK on or after 1 January 2021 will not have the right to work in the UK unless they have obtained a work visa under the new immigration system, for example a skilled worker visa.
If an employer would like to recruit an individual who requires a visa to work in the UK, they will need to obtain a sponsorship licence.
To avoid potential discrimination claims, employers should conduct right to work checks for all employees.
It is advisable that right to work checks are conducted once a job offer is made but before the employment commences and applicants should be asked at the recruitment stage if they have the right to work in the UK.
To conduct a right to work check, the employer should ask the individual they to provide their original, physical passport and evidence of the right to work in the UK if applicable.
When conducting a right to work check it is important that the employer does not copy the document provided by the employee without giving it proper consideration and inspection.
They should be inspected in the presence of the holder to ensure the documents presented are for the individual and are in date.
Due to Covid-19, if a right to work check cannot be conducted in person, employers can ask the individual to send their original documents and check them against the individual via a video link.
If an employer knows or has reasonable belief that an individual does not have the right to work in the UK and still employees them, they may face both criminal prosecution and a civil penalty.
Employers should keep a record and copy of the documents they have checked, and the copy should be dated with date the right to work check was conducted.
Evidence of the right to work checks should be keep for the duration of the individual’s employment and for 2 years after the employment relationship is terminated.
If you would like advice in relation to conducting right to work checks or recruiting migrant workers and would like to speak to an expert Employment/Immigration lawyer, please contact us via email at contact@davenportsolicitors.com or telephone on 02079036888.
