One important, but often overlooked, area of employment law is the requirement for employers to perform right-to-work checks.
The requirement is for employers to check whether or not their employees and workers have a right to work in the UK. If an employee or worker does not have the right to work then it will be illegal for them to be employed.
This is an area which is most pertinent in the agriculture sector, which is largely dependent on foreign labour to deal with seasonal demands.
Giving the daily COVID-19 briefing earlier this week, Environment Secretary George Eustice said only a third of the migrant workers who normally picked fruit and vegetables were currently in the country.
Although the international food chain was continuing to "work well", Mr Eustice said he expected there would be a need to recruit staff in the UK to harvest crops in the coming weeks.
Up to 80,000 workers help farmers harvest their crops across the UK, the vast majority from Eastern Europe. Only 10-15% of those workers are based in the UK and the rest fly in for the season.
In order to help, the government has been attempting to encourage furloughed workers to take up those jobs.
Notwithstanding the nationality of an employee, the employer must perform right-to-work checks.
Penalties and steps an employer can take to avoid them
A correctly conducted right-to-work check can provide an employer with a statutory excuse against a civil penalty for employing a person illegally, should it be that the employee in question does not have, or loses, the right to work at some point during the employment. To obtain the excuse, the employer must show that it has taken particular steps during the right to work check. Obtaining relevant documentation is not sufficient in itself.
If it’s found that an employer employed somebody without the statutory right to work, they can face one or more of the following penalties
- Up to £20,000 fine per illegal worker without a statutory excuse
- Loss of trading licenses
- Loss of sponsorship licence
- A listing on the Government’s public “name and shame” list
Ordinarily the proper procedure involves the employer obtaining documents from a prescribed list, checking that they are valid and copying/storing them.
Temporary changes during Coronavirus outbreak
In light of the C-19 outbreak right to work checks have been temporarily adjusted. This is to make it easier for employers to carry them out.
As of 30 March 2020 the following temporary changes have been made:
- checks can now 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 Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Notwithstanding the relaxing of the rules these checks continue to be necessary and employers continue to check the prescribed documents listed in right to work checks: an employer’s guide. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
Because of COVID-19, some individuals may be unable to evidence their right to work. During this period, employers must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show the employer their documents. During this time employers should:
- 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 the employer 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 status under the EU Settlement Scheme employers can use the online right to work checking service while doing a video call - the applicant must give permission for their details to be viewed.
If the employee or worker is unable to show their documents then the employer must contact the Home Office Employer Checking Service. If the person has a right to work then a positive verification notice will be sent. This provides the employer with a statutory excuse for six months from the date in the notice.
Retrospective checking post virus
It is not yet known when these measures will end but it can be expected that when that happens it will be back to "business as usual".
When the current relaxations end employers will be expected to carry out retrospective checks on existing employees who:
- started working during these measures
- required a follow-up right to work check during these measures
Employers should mark this check: “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”
The retrospective check must be carried out within 8 weeks of the COVID-19 measures ending. Both checks should be kept for your records.
The Home Office will not take any enforcement action against an employer if they have carried out the adjusted check, or a check via the Home Office, and then followed this up with the retrospective check.
If, at the point of carrying out the retrospective check, an employer finds that the employee does not have permission to be in the UK then their employment must be ended.
If the check carried out by the employer during the adjusted period was done in the usual, pre Covid-19 prescribed manner, then the employer will not need to undertake a retrospective check.
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