The temporary changes to the right to work check process introduced at the end of March 2020 are now going to be in place until 5 April 2022. The changes allow scanned documents to be sent to the employer and for a video call to be used to check the scan against the original document held up to the camera by the worker. From 6 April 2022 employers will need to have the original document in their possession or check an individual's right to work online.

What temporary COVID-19 adjustments to right to work checks have been in place?

Adjustments were made to the right to work check process from 30 March 2020. From that date employers have been able to carry out right to work checks via video call where the individual shows their original documents to the camera and they are checked against copy documents sent electronically by the worker to the employer (Adjusted Checks). This avoided the need to carry out checks in person and also avoided having to send passports or other original documentation in the post, which was helpful in the context of remote working.

    Where the individual's immigration status can be checked using the Home Office right to work checking service, employers have been able to use the service during a video call provided they have consent from the individual to do so.

    When are the temporary adjustments coming to an end?

    On 5 April 2022. 

    The temporary adjustments had been set to end on 31 August 2021, but on 26 August 2021, the Government announced a further extension. 

    What changes take place from 6 April 2022?

    From 6 April 2022, Adjusted Checks will no longer apply. Employers will have to:

    • be in physical possession of the individual 's original documents (copies will no longer be sufficient) and carry out the check whilst they are present. The person can be present in person or alternatively via video link (but the employer must have the documents in its possession at the time), or;
    • use the Home Office right to work online checking service where possible.

    In advance of 6 April, employers should ensure that those involved in carrying out such checks are trained on the upcoming changes. Right to work check processes should be updated. Additional Government guidance is expected nearer to April next year. 

    It will also be important for employers to consider their data protection obligations in relation to the handling of original documents and ensure processes are in place to be able to safety receive, check and return the documents. 

    Employers should ensure that enough time is factored into any on-boarding processes to allow for documents to be sent to the person carrying out the check.

    Do employers need to carry out retrospective checks where an Adjusted Check was carried out already?

    No, Home Office guidance states that retrospective checks will not be required for individuals whose right to work was checked using the adjusted process between 20 March 2020 and 5 April 2022 (inclusive). The Home office had originally anticipated that employers would be required to do this but have decided against this to support businesses during this difficult time.

    More information

    For more information on any of the issues raised in this blog, please contact Elaine McIlroy, Erin McLafferty, or your usual Brodies contact.

    Workbox by Brodies users can also find detailed information on our Checking the Right to Work page. If you would like to find out more about Workbox and how to sign up for a free online demo click here