Right-to-work checks: Your duties as an employer

Photo of a person checking that a candidate has the right to work in the UK

From 1 July 2021, the requirements for right-to-work checks for EU/European Economic Area (EEA) and Swiss nationals will change, and evidence of UK immigration status will be required using a Home Office online service, subject to limited exceptions.

So what's changing?

Right-to-work checks remain a requirement for UK employers, as they were before Brexit. Until 30 June 2021, EU/EEA and Swiss workers who were already in the UK before 1 January 2021 will be able to prove their right to work in the UK by providing their passport or national identity card as an acceptable document.

However, a points-based immigration system has been in place since 1 January 2021, and for people who entered the UK after that date, the right to work no longer automatically includes EU/EEA or Swiss nationals. A visa will usually be needed.

There is no need for employers to conduct retrospective checks - until 30 June 2021 they can continue to accept passports and national identity cards of EU citizens as evidence of their right to work. If an employer has conducted a compliant right-to-work check for an EU/EEA or Swiss national before 1 January 2021, they will not need to repeat this. The government's online checking service, which will be digital-only, can confirm whether a prospective employee has settled or pre-settled status.

Recent guidance from the Home Office

Given the changes, the Home Office has acknowledged that employers might be concerned about helping employees obtain the immigration status they need to continue working in the UK beyond 30 June.

Employers may invite individuals who have been granted status under the EU Settlement Scheme or the post-Brexit immigration system to prove their right to work via the Home Office, but they cannot insist that an individual proves their right to work using the online service before 30 June.

Employers are not required - but are allowed - to carry out retrospective right-to-work checks on existing EEA national/EEA family member employees, so long as these comply with the Home Office Code of Practice on avoiding unlawful discrimination while preventing illegal working. If an EEA national (or presumably their family member, although this is not stated in the guidance) cannot provide documents in a retrospective check to the standard required for a 'statutory excuse', the employer should contact the government's Employer Checking Service.

Employers might be concerned that a new employee entered the UK after 1 January 2021, but so long as they comply with the Home Office guidance in relation to right-to-work checks as it stands currently, they will be deemed compliant.

How could Mentor help you

If you're an existing Mentor customer, visit MentorDigital, where we host a range of tools, templates and guidance to help you plan for the longer-term changes to ways of working, including our dedicated coronavirus hub.

If you're not an existing Mentor customer and would like to talk about how we might help your business, call us today on 0800 074 8151 or sign up to our free MentorDigital platform. Customers with hearing and speech impairments can contact us via Relay UK on 18001 0800 074 8151

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