Right to work checks - Do you know your responsibilities?

By Jenna Tarry, HR Consultant

All employers have an obligation to prevent illegal working in the UK, which includes carrying out right to work checks on all employees before they start work.

EEA Nationals who entered the UK before 11pm on 31st December 2020 have until the 30th June 2021 to apply for either Settled or Pre-Settled Status, under the EU Settlement Scheme (EUSS), so employers are encouraged to remind their employees of their responsibilities, and not to leave until the last second.

For those employed prior to the 30th June, employees can continue to evidence their right to work in the UK by providing satisfactory ID or their permission under the EUSS, however, in order not to discriminate on the basis of nationality, employers can not require proof of their status under the EUSS.

During the pandemic, the Home Office allowed employers to carry out right to work checks using video calls to job applicants and scanned copies of ID. From 1st September 2021 (extended from the 17th May, and then the 21st June), employers must resume checking applicants’ original documents with the person present. Retrospective checks on employees appointed under the pandemic-adjusted rules are not required.

From 1st July 2021, right to work checks will change and all EEA nationals will be required to demonstrate their right to work through evidence of their immigration status, using the Home Office Online service. Further guidance is due to be published shortly by the Government, but employers should prepare themselves for further changes, so watch this space to stay posted!

What are the penalties for employing staff without conducting appropriate checks?

If an employer is found to be employing someone illegally and they have not carried out the prescribed checks, the sanctions may include:

• A civil penalty of up to £20,000 per illegal worker

• A criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine

• Closure of the business and a compliance order issued by the Court

• Not being able to sponsor migrants

So what should you be doing?

• Familiarise yourself with the right to work checks for EEA nationals

• Keep an eye out for further guidance on conducting right to work checks from 1st July

• Encourage staff to apply under the EUSS in good time, and before the 30th June

• Ensure you have in place reliable document checking systems

• Put in place comprehensive and consistent right to work checking procedures, and ensure all applicable personnel are appropriately trained in following the correct procedures.

• Retain records for at least 2 years post employment.