Updated right to work guidance for UK employers

As part of its preparations for the ending of free movement, the government has now published additional information for employers on conducting right to work checks. Whilst this information has been widely debated and speculated since the UK announced its withdrawal from the EU, the following key points have now been confirmed:

• Employers can continue to accept EEA national passports and identity cards as proof of right to work in the UK until the 30th June 2021.

• Employers who have undertaken a right to work check-in line with the published guidance will maintain a continuous statutory excuse against a civil penalty.

• During the grace period, employers cannot request evidence that an EEA national employee has applied to the EU Settlement Scheme or holds an immigration status under the new points-based immigration system – however the employee can choose to share this independently.

• The practical process for undertaking a right to work check, either in person or online, remains unchanged - although checks conducted virtually since the 20th March due to the ongoing pandemic are required to be followed up with a check of original documentation eight weeks after the Home Office announces that Covid-19 measures have ended – this applies to all right to work checks regardless of nationality.

• Further guidance is to be issued on how right to work checks will be conducted after 30th June 2021.

• The Home Office have confirmed that retrospective right to work checks will not be required on EEA national employees employed on or before 30th June 2021

EEA nationals already residing in the UK by the 31st December 2020 are not affected by the new rules, as both they and their families are eligible to apply to the existing EU Settlement Scheme, and still have until the 30th June 2021 to make an application. As a transition measure, employers can continue to accept the passports and national identity cards of EU citizens as evidence of their right to work up until the 30th June 2021, however EEA nationals choosing to evidence their right to work using a digital status obtained from the Home Office may do so. These employees may be verified via the Home Office online right to work checking service.

Whilst this government issued update provides employers with clarity on the post-January position for EEA nationals, it is not without issue. Due to the combination of the end of free movement and anti-discrimination provisions, this lack of change in right to work checks does introduce potential risks that employers hiring EEA nationals between 1st January and 30th June 2021 should be aware of. Namely, an EEA national who enters the UK after 1st January 2021 may not have the automatic right to work in the UK but can present their EEA national passport or identity card as proof of right to work to an employer. An employer cannot request proof of an immigration status from the EU Settlement Scheme or points-based immigration system to confirm such a worker’s permission to work without inviting risk discrimination against UK-resident EEA nationals with protected rights. The Home Office are yet to provide clarification on this area.

Therefore, it is important that employers review existing processes to ensure that they have robust processes in place to ensure the right to work checks are undertaken correctly. It is recommended that updated training is provided to relevant stakeholders so that they understand how to conduct checks in practice.

The Advisory Bureau is continuing to monitor right to work check processes and will report on any changes or updates.