The last month has seen significant changes to Right to Work procedures for UK employers which affect both British citizens and EU nationals who are starting a new job. Whilst a large number of us are continuing to work from home for the foreseeable future, a significant number of people are now returning to the workplace, therefore it is important that employers have procedures in place to cover both cohorts.

Extension of Covid adjustments

Following on from the initial announcement that the temporary adjustments to right to work checks due to Covid-19 would finish on 16 May, the Home Office have now announced that the Covid-19 adjustments will continue until 31 August.

On 20 April the Home Office initially announced that the temporary adjustments to right to work checks will finish on 16 May 2021, meaning that new hires on or after 17 May 2021 would have needed to follow the normal procedures as set out in the right to work check guidance.

This announcement was meant with significant opposition from employers and other stakeholders. The vast majority of right to work checks are carried out in person, therefore ending the adjustments on 16 May implied that the majority of new hires would be required to visit their place of work in order to establish their right to work. As such, this contradicted the government’s guidance to continue working from home where possible.

Given that employers were not planning on reopening their offices until at least 21 June at that stage, suddenly being told that they would need to be conducting in-person checks from 17 May came as a surprise, with many employers stating that they were simply not going to be ready to open their offices by this date.

Thanks to representations from a number of industry bodies, the Home Office took the decision to extend the Covid-19 adjustment period until 20 June, bringing it in line the wider guidance on working from home. That date has since been pushed back again to 31 August, affording companies a bit more time to get procedures in place.

Whilst the news that in-person checks are not going to be required until 31 August has been broadly welcomed, there are still calls for the Home Office to broaden the use of digital right to work checks in order to deliver a more agile and robust process for getting people into work.

The existing online right to work check system can only be used for employees that hold a Biometric Residence Permit (BRP) card or status under the EU Settlement Scheme, meaning that British citizens still need to rely on physical checks to be able to evidence their right to work.

Nevertheless, introducing an online system for evidencing a British citizen’s right to work is a long way off.

Right to Work checks on EU nationals after 30 June

Whilst the UK left the EU on 31 December 2020, EU nationals living in the UK on or before this date had until 30 June 2021 to submit an application under the EU settlement scheme. As such, in order to allow EU nationals to be able to start a new job before they receive a decision on their application the Home Office introduced a grace period whereby EU nationals only needed to show their passport as evidence of their right to work in the UK, despite the fact the UK has already left the EU.

The grace period ran until 30th June, therefore since 1st July any EU nationals starting a new job have been required to show evidence of their immigration status alongside their passport.

For the majority of EU nationals this will be evidence of their status under the EU Settlement Scheme. This will be relatively easy to evidence as they will be able to provide their prospective employer with an online ‘Share Code’ which will allow the employer to view their immigration status online. For EU nationals who hold permission under another immigration category they will also be able to use the online system and provide their employer with a Share Code providing that they have been issued with a BRP card.

Despite significant investment into outreach programmes by the Home Office, there are likely to be a number of EU nationals who have not applied under the EU Settlement Scheme, and as such are currently illegally resident in the UK. The Home Office are willing to consider late applications in very limited circumstances, however it must be stressed that these circumstances are very limited indeed – simply forgetting to submit the application in time will not be considered a valid excuse.

In order to allow for some business continuity where an employee has not applied under the EU Settlement Scheme in time, the Home Office have introduced a transitionary period which will run until 31 December 2021, whereby anyone who submits a late application can continue working until a decision has been made on their application.

In order to be eligible to continue working under the transitionary arrangements, the individual must submit their application within 28 days of the employer becoming aware that they have not applied in time. If the individual does not apply within this 28 day period the employer must begin dismissal proceedings. As mentioned above the transitionary period only runs until 31 December 2021, if an employer becomes aware that an employee has not applied under the EU Settlement Scheme after this date then they must begin dismissal proceedings.

There are very limited circumstances in which the Home Office will accept late applications, therefore employers do need to be aware that there is a very high likelihood that the application will be refused. As such, the employer needs to be prepared to begin dismissal proceedings against the employee, subject to any rights of appeal that the employee might have.