Is the Right to Work (“RTW”) check fit for a post-COVID-19 office environment?

UK employers have a duty to play their part in the prevention of illegal working. In essence, employers must verify that all employees have the requisite immigration permission. Importantly, as part of recruitment and onboarding processes, checks must be carried out indiscriminately, regardless of perceived nationality, race or ethnicity. Performing checks on only certain demographics of the candidate pool could lead to complaints of unlawful discrimination.

To support social distancing measures during the global COVID-19 pandemic, on 30 March 2020 the Government introduced temporary changes to the way in which employers are required to carry out right to work checks. Further guidance can be found here. The key change permits individuals to use scanned copies of right to work documents during video calls, with no need to send important documents (e.g. a passport or biometric residence permit) to the checker in advance.

These COVID-adjusted checks had initially been stated to end in May 2021, but this was delayed by the Home Office until 21 June 2021 to align with the intended lifting of restrictions. When this was delayed, the adjusted checking system was then further extended until 31 August 2021. We are not expecting a further extension. Therefore, from 1 September 2021, an employer must be presented with an original document and the check must be carried out either physically with the candidate present or virtually using live video (as was permitted before the pandemic), unless online checks are permitted. Relying on scanned or digital copies of original documents, or viewing the documents via video link, will no longer be acceptable or provide a defence against illegal working penalties. Retrospective checks will not, however, be required on those employees who were onboarded using the COVID-adjusted checks.

According the Home Office, the proposed change on 31 August will give employers “sufficient notice to put measures in place to enable face-to-face document checks.” Since 19 July, Government guidance has indicated that people working from home should be ‘encouraged to return to the workplace gradually’ by their employer. However, with many employees (particularly the younger workforce) still not fully vaccinated, and with many individuals being contacted and instructed to self-isolate by the NHS ‘Test and Trace’ service or the COVID-19 app, we are long way from experiencing (and enjoying) a COVID-free working environment. Many businesses have also seen the benefits of remote working (whether for cost-saving, or other, reasons) and employees (and the wider talent pool of applicants) are encouraged by employers considering different working models. Therefore, any suggestion that all companies will revert back to the tradition of 9-5 in the office by 1 September 2021 is perhaps a little misguided. How compatible the old way of conducting right to work checks will be with new (post-COVID) ways of working remains to be seen.

As stated at the top of this article, right to works checks must be conducted on all employees. However, from 1 September the approach to checks will treat certain categories of the workforce differently based on their nationality. As it stands, for UK and Irish nationals it will not be possible to use online checks to evidence right to work. Practically this causes issues (particularly for remote workers) as these individuals will either need to come into the office, or arrange for their documents to be posted and then participate in checks via video call. The lack of an online right to work check facility for all candidates will therefore present logistical issues for many employers from 1 September. The pandemic may have led to some businesses surrendering leases on their offices premises. In these circumstances, arrangements will still need to be made to meet with employees to conduct right to work checks on or before day 1 of employment. Whilst it may be possible for companies to utilise outside resource to assist with checks, ultimate responsibility will rest with the employer.

There is some mooted expectation that employers will soon have access to an app, whereby all applicants (and not just EU nationals) will be able to scan their biometric passport and upload it to a secure portal for checking. A sensible interim measure would have been to continue with the COVID-adjusted checks until either the app is developed, or office working is adopted by the majority. However, without a further extension, employers will need to prepare themselves as best they can for the return of the ‘old system’ from 1 September.

UPDATE: On 26 August 2021, following publication of this article, the Home Office announced that the adjusted right to work checks, introduced at the outset of the Coronavirus pandemic, will continue to apply until 5 April 2022. This will be welcome news for many employers; particularly those who are still operating with some element of social distancing as part of COVID-secure return-to-work protocols and those who have introduced hybrid/remote working. As a result, the challenges identified in our article will not be an issue for employers until next year.