In response to the impact of the COVID-19 pandemic, on 30 March 2020 the government introduced a modified right to work (RTW) scheme to assist employers to more easily check the status of prospective employees to legally work in the UK.  The government has confirmed that the modified scheme will remain in place until 30 September 2022 (having extended this from an initial proposed end date of 5 April 2022).

However, despite this easing of some of the RTW checks, employers still need to ensure they understand their obligations, or else risk falling short of having a statutory excuse to a civil offence of employing someone who is not permitted to do the work in question, which can incur significant financial liabilities of up to £20,000 per illegal worker.  Employers who knowingly employ (or have reasonable cause to believe they are employing) an illegal worker commit a criminal offence. This offence is sanctioned by an unlimited fine and/or up to 5 years’ imprisonment.

Details of the obligations on employers under the RTW scheme are set out in the table below, and the documents which must be produced under the scheme can be found here.

ORIGINAL RTW SCHEME  (applies prior to 30 March 2020 and post-30 September 2022)	MODIFIED RTW SCHEME  (applies from 30 March 2020 to 30 September 2022)
The employer must either –
do a manual document-based check:
obtain an original document	ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app
check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work the employer is offering	arrange a video call with the worker – ask them to hold up the original documents to the camera and check them against the digital copy of the documents, record the date the employer made the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy. The employer must also retain a secure record of the date on which the employer made the check
use the Employer Checking Service (ECS) if an employee cannot provide the required documents. If the person has a right to work, the ECS will send a ‘Positive Verification Notice’. This provides a statutory excuse for 6 months from the date in the notice.
or –
do an online check (for individuals with a BRP, BRC or FWP[1] or who have been granted status under the EU Settlement Scheme or the points-based immigration system) NB mandatory for biometric card holders from 6 April 2022 onwards:
access the online service using the share code provided by the individual plus their date of birth
in the presence of the individual (in person or via live video link), check that the photograph on the online right to work check is of the individual presenting themselves for work
retain evidence of the online right to work check

Biometric card holders

From 6 April 2022, new rules will apply to biometric card holders which essentially will make it mandatory for these individuals to evidence their right to work via the online service. The changes are highlighted in the table below and are important as employers who fail to follow the new process will not have a statutory defence to the civil offence mentioned above.

Right to work checks on biometric card holders up to and including 5 April 2022

Right to work checks for biometric card holders from 6 April 2022

BRC, BRP and FWP holders can choose to use either the online checking service or their physical card to evidence their right to work to an employer. Up to and including 5 April 2022, employers can continue to conduct manual checks on physical cards for evidence of a right to work. During this time, employers cannot insist individuals use the online service, and should not discriminate against those who wish to use their physical card. Employers can, however, ask individuals if they would like to use the online service.

BRC, BRP and FWP holders must evidence their right to work using the Home Office online service only. Employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to work check.

Identity Service Providers

Until 5 April 2022, employers who use a third party Identity Service Provider (IDSP) to check the right to work status of a prospective employee do not obtain a statutory excuse in the event that an employee is found not to have the right to work in the UK. From 6 April 2022, however, employers may use a third party IDSP in limited circumstances, namely to verify a British or Irish national’s right to work in the UK. Note, however, that this can only be conducted on individuals who hold a current British or Irish passport.

Employers who wish to use an IDSP must:

• Ensure the IDSP is certified to the required standards;
• Provide appropriate training and guidance to their staff for example, on what information they must obtain from an IDSP to confirm verification of identity, what the information can be used for, and what other requirements they still need to fulfil to establish eligibility to work;
• Discharge their duties in accordance with Home Office’s RTW complete identity evidence verification criteria and in accordance with existing wider RTW legislation and guidance.

Useful links

• An employer’s guide to right to work checks
• Employers’ right to work checklist
• Coronavirus: Right to work checks
• Employer right to work checks supporting guidance
• An employer’s guide to the administration of the civil penalty scheme
• Code of practice on preventing illegal working: Civil penalty scheme for employers
• Code of practice for employers: avoiding unlawful discrimination while preventing illegal working
• Online right to work service
• Home Office Employer Checking Service

[1] BRP: Biometric Residence Permit; BRC: Biometric Residence Card; FWP: Frontier Worker Permit