Revised government right to work (RTW) guidance was finalised on 1 July, available here. The guidance provides an overview of right to work procedures and checks after the end of the transition period for RTW checks on EEA employees on 30 June.
The guidance helpfully makes clear that provided employers have completed correct right to work checks in line with requirements in force at the time of the check and retained a copy appropriately, they do not need to do more. If it subsequently turns out an employee does not have the appropriate permission to work, the employer will retain a statutory excuse against a civil penalty for prior employment – though may need to take steps to terminate continued employment, subject as below.
If an employer decides to refresh pre 30 June right to work checks, this should be for all, not just EU staff, to minimise risks of successful discrimination claims.
New guidance has been added on what employers may do if they become aware, after 30 June, that an EU employee taken on before that date does not have appropriate settled or pre-settled status.
In particular:
- Where an EEA citizen has reasonable grounds for having missed the EU Settlement Scheme (EUSS) application deadline, they will be given a further opportunity to apply.
- Until 31 December 2021, where an employer identifies that an employee who is an EEA citizen had not applied to the EUSS by 30 June 2021, they do not need to terminate employment at the time, if transitional rules apply. This will be where the EEA citizen was employed by the employer, in the UK, before 30 June 2021 and the employer:
- Advises the employee to apply to the EUSS within 28 days and to provide them with a certificate of application or EUSS email – and terminate employment if not done within 28 days
- Contacts the Home Office Employer Checking Service (ECS) to confirm application and obtain a positive verification notice (PVN) and keeps appropriate proof – (1) the PVN, (2) the employee’s certificate of application to the EUSS (or EUSS email) plus (3) the original pre- 30 June 2021 right to work check) – which together will give a further statutory excuse against a civil penalty for up to 6 months
- Before the PVN expires does a follow up check with ECS – and if status is granted, uses the online checking service as now
- If not yet granted the employer will get a further PVN for 6 months and similar requirements apply – potentially repeatedly.
We recommend employers:
- continue to provide support
- ensure they have in place the correct checks and records which complied with applicable legislation and guidance at the time the RTW check was carried out
- diarise any required renewed checks for time limited permissions
- consider whether refreshed checks may be appropriate and if, so get them in hand in time to take advantage of the further transitional procedures.
Written 09 July 2021 - The above is provided for general guidance only and employers with specific queries are encouraged to get in touch with one of Lindsays Employment team.