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We’ve published a few articles about right to work checks but especially in this post Brexit era it remains a hot topic and, understandably, source of confusion for many.
We’ve put together a high-level guide to hopefully steer you through – especially when it comes to checks for EU nationals:
- The starting point for every right to work check is to ask if the employee can provide a share code. If they can provide a share code, you should use the employer ‘view and check’ service: https://www.gov.uk/view-right-to-work
The ‘view and check’ result is all you need to keep on file – you don’t need to copy the passport or obtain anything else UNLESS it’s someone who has an application in progress (usually EU Settlement Scheme) in which case you must also keep a copy of the employee’s Certificate of Application on file (see 4b below).
- If the employee can’t provide a share code, the employer should follow the steps set out in the latest Home Office right to work checklist and obtain a suitable document from list A or B. Note that a follow up check will need to be diarised if the individual can’t produce a document from List A.
- If the employee can’t provide a share code AND doesn’t have one of the documents from the checklist (perhaps because they have an application in progress) you will need to use the online Employer Checking Service (not to be confused with the ‘view and check’ service mentioned in 1 above). You need the individual’s permission to use the service and a few personal details. If the person is allowed to work it will return a Positive Verification Notice that is usually valid for 6 months.
4. Important Notes:
- Individuals can usually continue to work if they are/have been on one valid visa, it is reaching expiry, and they have applied to extend it (or switch to a different visa permission/indefinite leave etc) PROVIDED they submit their new application before the existing permission expires. It doesn’t matter if it then expires whilst they’re still waiting for a decision, the important thing is they get the application in before it does. However, you still need to conduct a check in line with the above, and always take advice if you’re unsure.
- EU nationals can apply to the settlement scheme late – employers can’t assume that because an individual hasn’t applied, they are illegal workers and can’t be hired/must be dismissed – that isn’t usually the case. The employee will need to provide the employer with their Certificate of Application and the employer should follow step 1 above, or 3 if there is no share code. The employer needs to keep the result from the online check AND a copy of the Certificate of Application.
- Employers should not insist that their existing EU national employees provide evidence of settled status. Provided they supplied a valid EU passport when they joined (prior to 1 July 2021) that is valid proof of their right to work for the entire duration of their employment, regardless of the fact the rules subsequently have changed. Employers can ask, but insisting on it could, depending on the circumstances, lead to discrimination claims.