What you need to know as an employer
The Home Office has published its revised Code of practice on preventing illegal working and has also updated its employer right to work checks supporting guidance.
The Code of practice on preventing illegal working (“draft Code”) can be found here. This sets out the changes to right to work check requirements for EEA citizens which come into effect on 1 July 2021. The Home Office has also updated its employer right to work checks (“Supporting Guidance”), which can be found here.
The starting point is that as an employer you must check that all your employees have the legal right to work for you in the UK. If you fail to carry out the correct right to work checks then this can lead to a civil or criminal penalty. The draft Code only relates to the civil penalty regime only.
As long as you have carried out the correct right to work checks and you can adequately evidence this then, if you later find out that the employee did not have the legal right to work for you in the UK, you should have a statutory defence to the offence of employing someone illegally.
The deadline for EU Settlement Scheme applications to enable EEA/Swiss nationals and family members to remain living and working in the UK legally is 30 June 2021. This draft Code and Supporting Guidance covers right to work checks for EEA/Swiss nationals which comes into force on 1 July 2021.
Current position – right to work checks until 30 June 2021
Until 30 June 2021, you are not expected to differentiate between EEA nationals who arrived in the UK before 11.00pm on 31 December 2020 (under EU free movement) and those who arrived from 1 January 2021 (under UK immigrations laws). There is also no mandatory requirement for employers to undertake retrospective checks on EEA nationals employed before 30 June 2021.
The Government has confirmed that until 30 June 2021, EEA nationals can use their passport or national identity card to evidence their right to work. As an employer requiring an individual to provide anything other than a passport or national identity card (e.g., their status under the EU Settlement Scheme or the UK points-based immigration system) right now could be regarded as discriminatory. You can still, however “invite” those individuals to evidence their status using the online service.
As long as a right to work check has been undertaken in line with current right to work legislation and guidance, and you do not know or have reasonable cause to believe that the employee has no right to work, you will maintain a continuous statutory excuse against a civil penalty if your employee is subsequently found to be working illegally.
Right to work checks from 1 July 2021
The draft Code sets out the following points to note:
- Any right to work checks undertaken under the current right to work legislation and guidance will not have to be repeated retrospectively.
- If a right to work check is undertaken before 1 July 2021, it is the current right to work legislation and guidance which will apply, even if the individual is due to commence employment on or after 1 July 2021. For example, if you undertake a right to work check on an EEA national prior to 1 July 2021, you only need to see the individual’s passport or national identity card in order for you to establish a statutory excuse, even if the individual’s employment commenced on or after 1 July 2021.
- Any right to work checks undertaken after 1 July will require the EEA national to evidence that they have the appropriate immigration permission to undertake their proposed role.
- If, however, a breach occurs on or after 1 July, the draft Code will apply when it comes to calculating the penalty even if the check was undertaken before 1 July 2021.
- Any follow up checks required from 1 July 2021 must meet the requirements of the draft Code.
Amends to the list of acceptable documents for right to work checks
Documents that are considered acceptable for establishing a statutory excuse when conducting a manual right to work in the UK are set out in two lists, List A and List B.
The list of acceptable documents has now been amended by the draft Code and it now refers to documents which include:
- those issued to EEA/Swiss nationals, and their family members.
- a document issued by the Bailiwick of Jersey and Guernsey.
- new addition of Frontier Work Permit.
- Irish passports.
You will need to obtain one or more documents from either List A or List B (depending on the employee’s circumstances) so that a statutory excuse can be established. The draft Code and Supporting Guidance sets out the revised lists of acceptable documents.
For more information on how to conduct right to work checks please see the updated Home Office Supporting Guidance which can be found here.
Online right to work check
The draft Code confirms that some individuals who have been issued their immigration status digitally by the Home Office can only use the online service to prove their right to work e.g. such as under the EU Settlement Scheme. In such a situation, you would be able to carry out right to work checks using the online checking system. You will need a share code which the employee will need to share with you, and you will need the employee’s date of birth.
For more information on conducting online right to work checks, please see the updated Home Office Supporting Guidance which can be found here.
What should you be doing as an employer?
You should be considering whether you need to apply for a sponsor licence if you are intending to employ any EEA or non-EEA citizens.
Continue to encourage your EEA staff to apply under the EU Settlement Scheme and before the deadline of 30 June 2021. You may want to consider inviting those individuals to evidence their status through the online service.
You should be checking that you do have effective right to work checking practices in place. You should:
- ensure you understand the correct right to work requirements that need to be carried out in light of the above, both during the grace period and from 1 July 2021 onwards.
- check internal processes.
- have robust document checking systems in place.
- have thorough and consistent right to work checking processes and ensure that all appropriate staff are trained.
- have records of right to work checks for your staff; and
- have a history of compliance with the requirement.
If you need any advice on right to work checks and managing your staff, we’re here to help – get in touch.