Statutory checks to prevent illegal working resume on May 17, 2021

From May 17, 2021, employers must revert to conducting right to work checks in line with the statutory code of practice on preventing illegal working. This means:

Obtaining the employee's original documents as prescribed in the code of practice, or accessing the employee's right to work using the Government's online tool (if available).

Checking (in the presence of the prospective employee) that the documents relate to the individual and are original, unaltered and valid.

Copying and retaining the documents and recording the date of the check.

Unless the employee or prospective employee holds a digital immigration status (such as status granted to EEA nationals under the EU Settlement Scheme) or a biometric residence permit, the employer and the employee will either have to arrange to meet in person (even though this would appear to contradict the Government's Covid-19 roadmap) or for the employee to send their original documents to the employer to be checked.

Checks "in the presence of the individual" can be conducted in person or via live video link. In either case though, the employer must be in physical possession of the original documents. Inspection of scanned or faxed copies is not permitted.

Relatedly, the Government has confirmed that employers no longer need to carry out retrospective checks on employees who had a Covid-19 adjusted check between March 30, 2020 and May 16, 2021 (inclusive). Employers will therefore maintain a statutory excuse against a civil penalty for checks conducted during this period in accordance with the temporary measures.

This change precedes further anticipated changes to the right to work checking guidance which will reflect the end of the grace period following the Brexit transition. Those changes will take effect from July 1, 2021 - more details to follow.

• Note: The Government announced on May 12 that the reintroduction of in-person right to work checks has been postponed until June 21."