Employers are now no longer able to accept EEA passports or national identity cards as evidence of an individual’s right to work in the UK and the deadline for applying to the EU Settlement Scheme (EUSS) has now passed (30 June 2021).
The impact of getting your worker status wrong can lead to heavy fines and even criminal liability with employers assuming full liability – even where the check is carried out by a third party on its behalf.
We are urging clients to ensure they are up to date with the new requirements to minimise exposure here and we can audit your processes too so do please get in touch.
What are the new requirements?
Gone are the days of a simple, manual passport check! In summary, the government has issued a list of new acceptable documents proving immigration status. Checks can also still be carried out manually however, the government is encouraging these checks to be carried out online, using the Home Office’s online right to work service.
Employees will need to provide a “share code” which will enable their employer to see their Home Office immigration status and will confirm the type of work they are permitted to do and all other specifics associated with their right to work status. Using this online service will also provide a statutory excuse against any civil liability.
As long as these checks confirm that the individual has settled status, then they will have a continuous right to work in the UK. If they have pre-settled status, they will have a time-limited right to work and follow up checks will be required.
If the individual has neither settled nor pre-settled status, then you fall back on legislative requirements for evidencing UK immigration status such as Leave to Remain and Visas, amongst others upon which we can advise.
What if an employee has not got the required immigration status?
In short, any EEA citizen who applies to work for an employer but has not met the EUSS deadline, nor has alternative immigration status, should not be employed. Our advice would usually be not to start the employment until EUSS status has been fully checked.
For existing employees, there is some scope for making late applications by means of a transitional arrangement until 31 December 2021, where the employee can show reasonable grounds for missing the original deadline and employers can help here. This may be useful where an existing employee has missed the deadline, yet it may be disproportionate to take immediate steps to terminate their employment. Do note that this only applies to existing employees though.
If you are able to take advantage of these transitional measures, then clear steps and timelines do apply and we recommend taking advice to get this right, as the risks of not doing so can be significant.
If you or your business require any advice or support in handling these issues or checking that your business is compliant with the new right to work checks, please contact the team.