Adjusted Right to Work Checks at Interview or Offer Stage – 24/11/21

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It is important that you verify a candidate’s right to work in the UK status at interview or prior to offer stage so that you are comfortable that continuing with a candidate’s application...

In our newsletter on 26 August 2021, we advised that the  COVID-19 temporary adjusted right to work checks has been extended till 5 April 2022. However, it is important that you verify a candidate’s right to work in the UK status at interview or prior to offer stage so that you are comfortable that continuing with a candidate’s application and any subsequent offer of employment would not result in either an offer being withdrawn later, which can create other issues for you such as workforce planning and brand damage but minimises any risk to you as the employer for potentially employing an illegal worker. Please forward this newsletter to any of your internal recruiters/hiring managers so that they are aware of their responsibility and have the latest information available to them to assist in the checking process.

It is also important that you treat all candidates the same. Therefore, even if the candidate is a British passport holder, you must ask them to produce their right to work in the UK documentation (British passport and/or full birth certificate, not shortened version), and on that basis you should then follow the same procedure for the adjusted checking process by verifying their documents that you have seen the original copy, that it is a true likeness, date, sign and print your name on the copy. If they are a British passport holder, the passport can either be expired or current.

Black Mountain have extracted the latest information from Gov.uk regarding adjusted right to work checks;

Source: Gov.uk https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

Updated advice for employers carrying out right to work checks during coronavirus (COVID-19) adjusted measures:

The following temporary changes were made on 30 March 2020 and remain in place until 5 April 2022 (inclusive):

  • Checks can currently be carried out over video calls
  • Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • Employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
  • Checks continue to be necessary, and you must continue to check the prescribed documents set out in right to work checks: an employer’s guide or use the Home Office right to work online service. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.

Checking an individual’s right to work using the temporary COVID-19 adjusted check measures

Up to and including 5 April 2022, if you are carrying out a temporary adjusted check, you must:

  • ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
  • arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date you made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • if the worker has a current Biometric Residence Permit or Biometric Residence Card or has been granted status under the EU Settlement Scheme or the points-based immigration system you can use the online right to work checking service while doing a video call – the applicant must give you permission to view their details.

Online right to work service

The Home Office right to work online service gives you a defence against a civil penalty. You don’t need to see or check the individual’s documents, as right to work information is provided in real time directly from Home Office systems.

Employers cannot insist individuals use this service or discriminate against those who choose to use their documents to prove their right to work.

Retrospective checks

You do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 5 April 2022 (inclusive). This reflects the length of time the adjusted checks have been in place and supports business during this difficult time.

You will maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.

It remains an offence to work illegally in the UK. Any individual identified who is disqualified from working by reason of their immigration status, may be liable to enforcement action.

If the job applicant or existing worker cannot show their documents

You must contact the Home Office Employer Checking Service. If the person has a right to work, the Employer Checking Service will send you a ‘Positive Verification Notice’. This provides you with a statutory excuse for 6 months from the date in the notice. The Employer Checking Service is available at https://www.gov.uk/employee-immigration-employment-status It is important to state that further checks MUST be done either on or before the expiry date of the PVN.

End of temporary adjustments

The temporary adjustments to right to work checks due to COVID-19 will end on 5 April 2022 (inclusive). New guidance will be issued ahead of 6 April 2022.

The HR team as always are on hand to advise, but please ensure that right to work checks are carried out as either part of the recruitment process, or no later than the first day of work so that you are confident that they have the right to work in the UK.

Black Mountain Group

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