In order to obtain a statutory defence against illegal working, employers should check the right to work of all employees’ original documents in person on or before their employment commences. In the absence of a correct check and in the event that an illegal working issue arises, this will assist the employer in avoiding civil liability. As a result of the COVID-19 Pandemic, the UK’s Home Office introduced a concession under which employers have temporarily not been required to see an employee’s original document in person in order to carry out a compliant right to work check, and instead can carry out a remote right to work check in view of the Government Guidance to work from home. The Government had announced that this concession was due to end on 17 May 2021. However, in view of the fact that the Government’s advice remains the case that individuals should continue to work from home where they can, this decision had caused concern amongst many employers whose employees remain working remotely. The Government has now decided to extend the concession until 20 June 2021, with face to face and physical document checks resuming on 21 June. This is aligned with the easing of lockdown restrictions and social distancing measures as set out in the government’s roadmap for England and those of the devolved administrations.
Some employers are still concerned with regard to the position after 21 June, with many indicating that their offices will not be fully open by that date. In the absence of any alternative guidance after that date and, in order to obtain a statutory excuse against a civil penalty, employers may still choose to complete right to work checks remotely, but employers must view the employee’s original documents. If not back in the workplace, and the absence of an online right to work check being possible in a given case, this will need to be done by the employee sending (e.g. by post or courier) their original documents to the employer to check ahead of the video call. This raises its own issues in terms of security of important personal documentation, whether individuals are willing to do so and, whether employers are willing to take responsibility for such documents. It may be employers instead take a risk based approach and continue to adopt the approach permitted by the COVID concession noting why this approach continued to be adopted notwithstanding the withdrawal of the concession. In doing so, they mitigate the risk of any illegal working issue ever arising and, if concerns over a migrant’s right to work do unfortunately materialise, being able to demonstrate to the Home Office that any penalty should be significantly reduced by reason of the reasonable checks being carried out.