Retrospective right to work checks not required
What do employers need to keep in mind after the temporary measures come to end?
Responding to the COVID pandemic, the Government implemented temporary measures applicable to right to work checks on 30 March 2020, which were to remain in place until 16 May 2021.
The temporary ‘less restrictive’ measures were intended to assist employers with their right to work checks during the period of lock down. The temporary measures facilitated workers being able to send scanned copies of original documents or a photograph of documents via email or a mobile app (as opposed to the need for original documents). Video calls were then required where workers have held their original documents to the camera so that employers can check them against the digital copy sent.
The Government have issued new guidance indicating that when the temporary measures end on 16 May 2021, employers must revert to the pre-COVID requirements and check the applicant’s original documents or use the online checking service.
Importantly, for those employers who have used the temporary measures checks from 30 March 2020 until 16 May 2021, they will not have a duty to perform retrospective checks on their workers and, further, will be afforded a statutory excuse against illegal work if the checks were undertaken in line with the prescribed temporary measures. This is good news for employers as the burden to ‘double check’ workers employed from 30 March 2020 has been removed, thereby reducing the administrative tasks and time.
However, there will be a significant proportion of the workforce that will continue to work remotely beyond 17 May 2021 and provision must be made for the receipt of original documents. This could include the use of Special Delivery post or couriers but, whatever method is used to deliver original documents, there can be no doubt that this must be done from 17 May 2021.