Right to work checks: what’s changed?

Up until 30 June 2021, EU, EEA and Swiss citizens were given 6 months after the end of the Brexit transition period (from 1 January 2021 until 30 June 2021) to apply through the EU Settlement Scheme if they wanted to continue living and working in the UK (known as the ‘Brexit Grace Period’).

During this period employers were able to continue to accept an EU, EEA or Swiss passport as evidence for right to work check purposes. Employers were not expected to differentiate between those who entered the UK before or after 31 December 2020 (meaning that they could have inadvertently recruited employees who did not have the right to work in the UK).

The government issued updated guidance on the right to work checks employers need to carry out for new employees starting on or after 1 July 2021. So, what’s changed?

Here are the headlines:

• Proof of right to work – an EU, EEA or Swiss passport will no longer be proof of an employee’s right to work in the UK. You’ll now need to see proof they’ve applied for or been granted settled or pre-settled status, or have a valid visa allowing them to work.
• Settled status applications – if an EU, EEA or Swiss employee didn’t apply for settled status by 30 June 2021, they may be able to submit late applications. Employees will need to show a good reason for missing the deadline, and you’ll need to seek Home Office approval to continue their employment.
• Additional right to work checks – the government have confirmed there is no need to carry out further checks on EU, EEA or Swiss employees who started working for you before 1 July 2021 (provided you already have appropriate document copies on file).

If an employer is considering carrying out retrospective right to work checks on those who began employment before 1 July 2021, it’s a good idea to seek legal advice about the risks involved in this process and the pros and cons of doing so. There is no legal requirement to carry out such checks and the process may result in certain race discrimination risks, especially if the checks are focussed on certain individuals based on their nationality or immigration status.

Employing workers illegally can result in civil penalties (up to £20,000 per employee) along with the potential for criminal sanctions, so ensuring you have a process in place to establish employees’ right to work is essential.

For more information, take a look at the Government’s Right to work checks: Employer’s guide, or get in touch with our sister company, Halborns, for expert legal advice.