Right to work checks – your questions answered

Below are a few of the questions asked by delegates in relation to right to work checks, with answers provided by our guest speakers, Malcolm Gregory and Kate Benefer.

Q: For EU nationals and people with biometric residents permits, where we are undertaking right to work checks digitally, do we also need to keep a copy of their certified passport copy?

A: No, you just need to do the digital check and then keep a record of that check (you can save electronically or print it out and save as a hard copy). As with the manual checks you also need to keep a record of when the check was done.

Q: When it comes to ‘nomad working’ i.e. permission to work from anywhere in the world, what happens if a business has a short-time nomad policy – for example, just allowing someone to work anywhere in the world for one or two weeks at a time?  Would the right to work in the foreign country still apply?

A: There are still risks in relation to immigration laws in those other countries. Local laws would need to be checked. For such a short period of time it is less likely that there would be tax implications or additional statutory rights and obligations triggered, but it is still possible and local specialist advice should be taken.

Q: Our HR is based in one office and we cannot visit all our offices to carry out the right to work checks. Can other admin staff checks the documents on our behalf?

A: Yes. The requirement is for the employer to do the check but it doesn’t matter who specifically within the organisation. You just need to ensure that whoever does the check is aware of the correct process and keeps the correct records so as to ensure you maintain your statutory defence against a civil penalty.

Q: How do we check  a biometric residents permit that needs renewing?  Would that have to go through the digital check again?

A: Yes. For any time-limited leave, you should diarise the expiry and run the check again before the original visa or biometric resident permit expires. Biometric resident permits can no longer be checked manually and you must use the government’s right to work site to check the right to work digitally using an employee share code.

If an application for extension is submitted fairly close to the expiry date of the original visa/permit, a decision may not yet have been made on the application when you do the check. If this is the case you can use the Employer Checking Service - GOV.UK to verify that an in-time application has been made. If you get a positive verification notice from this, it gives you a defence for a six month period. You then need to do the digital check again.

For further information about any employment issue, please contact employment law partners Malcolm Gregory or Kate Benefer at RWK Goodman in Oxford.

To get involved in future Zoom HR Hubs, as a guest speaker or as an attendee, please contact Kate Allen, Managing Director at Allen Associates.