Right to Work Checks: Brexit & Covid-19 Impacts
Posted on 16th September 2021, by Kerry Hull, in Industry News
UK Businesses have had it tough over the last 18 months as they have had to navigate through the various challenges presented by both Brexit and the Covid-19 pandemic. One particular area of key compliance for all employers that has been significantly impacted is Right to Work (RTW) checks.
The 1st July 2021 marked the end of the six-month grace period which followed the UK’s exit from the European Union. Sweeping changes were introduced that affect the way in which all employers conduct their RTW checks moving forwards, with the changes focused on ensuring employers accept the correct documents from EU, EEA & Swiss Nationals.
Lists A & B of the Home Office’s supporting guidance for employers have been amended to reflect the fact that an EU national’s Passport, for example, is no longer acceptable. So, any EU, EEA or Swiss citizen that wished to continue living in the UK after 30 June 2021 had to apply to the EU Settlement Scheme
Introducing the EU Settlement Scheme
Many EU, EEA & Swiss nationals will have applied for Settled or Pre-settled status under the EU Settlement Scheme and upon this being granted, will be able to digitally demonstrate their eligibility to work in the UK. Those EU, EEA or Swiss nationals that were not eligible to apply under the EU Settlement Scheme will have to demonstrate their right to work in the UK via alternative means, i.e. a visa, aligning with the existing rules for those nationals from outside of Europe.
It’s worth noting that an exemption applies to nationals of Ireland, the Channel Islands and Isle of Man, all of whom for the most part can continue to demonstrate their Right to Work with a Passport, for example. Guidance for these nationals is also contained in the supporting guidance for employers.
Covid-19 and RTW checks
Separately, the UK Government also temporarily amended the process by which employers carry out RTW checks in light of Covid-19, which allowed such checks to take place remotely. These measures were due to revert back to normal at the end of June 2021, however they have now been (further) extended until 5th April 2022.
It is important to note that from 5th April 2022, barring any further extensions to the relaxation of these temporary measures, the rules revert back to what they were and RTW checks will either need to take place face-to-face where the original documentation will need to be present, virtually where the perspective employee has posted their original document(s) to the employer, or online whereby the employer checks a RTW status via the relevant Home Office tool.
For those RTW checks that take place whilst the temporary measures are in place, as long as the temporary guidance is followed then no retrospective checks are required and an employer will maintain a defence against a civil penalty. That said, any checks that do take place from 1st July 2021 to the 5th April 2022 will still need to comply with the Home Office’s updated guidance in order to maintain a defence against civil liability.
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