The rules on checking prospective employees’ right to work have always been a bit complicated, but changes driven by Covid and Brexit are taking place. It s vital for employers to adapt their processes accordingly, to avoid potential penalties. Here is our heavily summarised run-down; please seek further guidance in areas that affect you.
We are used to checking documents that demonstrate new employees’ right to work in the UK. The Government relaxed the rules during Covid so that documents could be checked via video call and a scanned copy kept on file, instead of the originals. This relaxation has been extended to 31 August 2021. Details are here: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks
From 1 July 2021, other than for Irish citizens, EU / EEA / Swiss passports are no longer acceptable documents to demonstrate the right to work in the UK. Such citizens entering the UK from 1 July will therefore need acceptable visa status. You can check what documents you need to verify here: https://www.gov.uk/legal-right-work-uk
Alternatively you can also view an applicant’s right to work details online, if they provide you with their date of birth and a right to work share code. https://www.gov.uk/view-right-to-work
Employer Checking Service
Another online checking service (Employer Checking Service) must be used where your prospective employee can’t provide original documents because e.g. they are waiting for a right to work decision or documentation. The individual will provide you with a ‘share code’ to use. The check can be found here: https://www.gov.uk/employee-immigration-employment-status If you get a negative response, you should try again in a couple of days and/or make further enquiries since the background processes may not yet be complete. You can face a claim if you dismiss an employee on the basis of an unreasonable view that they did not have the right to work.
EEA and Swiss nationals who became resident in the UK after 1 January 2021 may not have permission to work and will not have been able to apply under the EU Settlement Scheme. However, they will have been able to work on the basis of their passport. You do not have to do retrospective checks on EU nationals if they were correctly checked under the rules in place prior to 1 July.
Sign up deadlines
If an employee who was eligible to sign up for the EU Settlement Scheme does not do so by 30 June 2021, there will be a transitional scheme available until 31 December where they can still regularise their status – there will be a specific process to follow. However, it is much better for them to apply under the EUSS by 30 June 2021.
Frontier Worker Permit
You may begin to be presented with a Frontier Worker Permit – for people who are based in the EU but have crossed the border regularly to work.
A blanket policy of not considering applicants for a role because they do not have right to work in the UK is technically risky under discrimination law. It is better to consider this issue later in the process once suitability for the role has been considered.