Right to work checks.

Right to work checks.

Employers will be familiar with the need to complete right to works checks, which continue to be required following Brexit.

In short, employers must carry out checks in respect of all new employees or workers, regardless of nationality. They must see original documentation proving the right to work in the UK, check its validity and take a copy of the documentation along with recording the date the check was made.

The documentation which needs to be checked will be changing later this year.

Right to work checks up to 30 June 2021

Where an employer employed an EU national prior to 31 December 2020 they will have already carried out right to work checks. They do not need to take any further action and cannot insist on seeing evidence of an employee’s Settled Status or Pre-settled Status under the EU settlement scheme. For more details on the EU settlement scheme, our previous article is here.

If an employer has employed an EU national on or after 1 January 2021, but believes they came to the UK prior on or before 31 December, they must carry out the same right to checks as prior to Brexit. Again, they cannot insist on seeing evidence of an employee’s Settled Status or Pre-settled Status, although if the employee chooses to provide evidence of their status in satisfaction of the rights to work checks that can be accepted.

Even if it later comes to light that the individual did not have the right to work in the UK, the employer will have a statutory defence against liability as a result of carrying out the right to work check.

If an employer knows or believes that an EU national came to the UK on or after 1 January 2021, they must not employ them without obtaining the appropriate visa.  Carrying out a right to work check will not provide the protection of the statutory defence, because the employer knew the individual did not have the right to work in the UK.

Right to work checks from 1 July 2021 onwards

Where employment commenced on or before 30 June and the right to work check showed a permanent right to work in the UK, no further checks are required or allowed. Where the check showed a temporary right to work a follow-up check is carried out in the usual way.

For employment starting from 1 July 2021, employers must see evidence of the employee’s status under the EU settlement scheme or evidence of the appropriate visa.

Importance for employers

Knowingly employing someone who does not have the right to work in the UK, or failing to carry out the correct checks, can result in a fine of up to £20,000 per illegal worker, or in serious cases up to 5 years in prison and an unlimited fine. Therefore it is imperative that employers carry out the correct checks.

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