Right to Work Legislation 2021 - What HR needs to know

This article outlines the expected changes to Right to Work legislation with the end of the BREXIT transition period on 31st December 2020.

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‍With 2021 just around the corner there are a number of important aspects and considerations in relation to Right to Work legislation that HR Directors and Managers need to understand. This article provides an executive overview of what is ahead and the actions required, we have also established a free to use email advisory service for any organisation requiring further input – simply email advice@rightcheck.io

‍Existing employees.

‍There are no immediate actions required with regards to existing employees. Providing you conducted satisfactory Right to Work at the point of recruitment you will have fulfilled your obligations; any subsequent changes to Right to Work legislation will not apply retrospectively to existing employees.That said, there are two further matters to be aware of in the case of existing employees:

1. On 30 March 2020, the Home Office announced an adjustment to enable Right to Work checks to be conducted remotely, without the need to be face to face. The temporary nature of these measures was explicit, as was the requirement to keep a record of employees where ‘temporary COVID19 Right to Work checks’ were undertaken. There are strong indications that the Home Office will reverse these temporary measures early in 2021 and, following the announcement, employers will have 8 weeks when they will need to undertake retrospective checks for these employees.
2. The Government has encouraged EU citizens to apply for the EU Settlement Scheme with a deadline for applications of 30th June 2021. Whilst employers are at liberty to encourage existing employees to apply for the scheme, they cannot mandate that this to be done. This begs the question what employers should do to ensure they are not exposed if an existing employee fails to apply prior to the deadline of 30th June. Currently there is no clear answer to this question – we will update further as soon as we know, in the meantime we would urge employers to ensure they have a clear understanding of the profile of their employee base.
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Recruiting new employees from 1st January 2021.

‍From 1st January there are four categories to consider that relate to the nationality of the candidate. We will consider each of these categories in turn, identifying any considerations you should take into account within your recruitment process to ensure compliance with Right to Work legislation.

1. UK citizens

No changes to the current situation – i.e. you must continue to conduct Right to Work checks in the same way you undertake today: Note - it is a requirement that you do undertake Right to work checks on all candidates to avoid any risk of discrimination and also to ensure that were an issue to subsequently come to light questioning the identity/authenticity of an individual's ID documentation then, providing you have conducted a Right to Work check correctly, you will have established a statutory excuse

2. Republic of Ireland citizens

The Common Travel Area (CTA) is a long-standing arrangement between the UK and Ireland that pre-dates UK membership of the EU. Under the CTA, Irish citizens can move freely and reside/work in the UK i.e. a candidate that presents you with an Irish passport is sufficient ID documentation to establish they have a Right of Work in the UK.

3. EU citizens currently residing in the UK

For EU citizens who currently reside in the UK and hold either settled or pre-settled status, the process for employers to conduct Right to Work checks is already defined (via an online share-code supplied by the candidate).For EU citizens who reside in the UK and have not yet applied for the settlement scheme, EU passports and ID Cards can continue to be used as proof of Right to Work.

4. EU citizens and non-EU citizens not currently residing in the UK

From 1 January 2021, a new points-based immigration system will apply to the UK, treating EU and non-EU citizens equally when applying for visas. Employers who wish to recruit workers from outside the UK after 1 January 2021 must apply to the Home Office to become an approved sponsor and should be aware of the new visa types.Employers should also be aware of the new Frontier Worker Permit. This new visa is applicable to any employees that are EU citizens working for the organisation but who do not reside in the UK.
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‍What actions should employers take now?

• We would recommend employers conduct an audit of existing Right to Work checks and associated documentation they hold for existing employees.
• We would also recommend employers are in a state of readiness to digest anticipated new employer’s guidance on Right to Work checks, ensuring that once it is released that all recruitment is aligned to the new guidance without delay.
• We will update this article periodically as more information and guidance from the UK Government becomes available.
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Disclaimer: The information contained in this article is provided for information purposes only and should not be construed as legal advice on any matter. You should not rely on the information published on this website, which does not take account of individual circumstances and may not reflect recent changes in the law. While we make reasonable efforts to keep our information accurate, we assume no responsibility for its accuracy and correctness, or for any consequences of relying or acting upon it, howsoever arising.