I would like to start this month by extending a very warm invitation to our annual Employment Law Conference which takes place on 10 June 2021. We are excited to announce that, after years of welcoming delegates to a face-to-face event in Leeds, the conference will take place virtually this year. The theme of the conference is Leading in Challenging Times and will look at challenges for the notfor-profit sector in leading hybrid and remote teams and managing people in the current context. It will feature a fascinating key note presentation from Susanne Jacobs, an organisational behaviour and performance specialist, focused on unearthing the secret to motivation, trust and engagement in hybrid teams. You can find out more and book for this event through the link below. I look forward to seeing you there!
In our first article this month, we highlight the upcoming changes to Right to Work checks. A return to usual practices for the physical checking of original right to work documents is scheduled for June. And from 1 July, new rules will apply when checking right to work status for EEA nationals.
There have been two useful judgments in the Employment Appeal Tribunal which we cover this month, both considering health and safety related claims. In Flatman v Essex County Council, the EAT considered whether an employer had fundamentally breached the employment contract by failing to provide manual handling training to a support assistant who had to lift a disabled child on a daily basis. In Sinclair v Trackwork Ltd, the EAT had to decide whether a manager had been automatically unfairly dismissed for bringing in unpopular new health and safety protocols.
We also cover a recent case on compulsory vaccination heard in the European Court of Human Rights. This case challenged a Czech law under which penalties can be imposed on parents who fail to have their children vaccinated against specified diseases. Although this case is not in an employment context and pre-dates the Covid pandemic, it provides a useful insight into how human rights based challenges of schemes to penalise vaccine refusal might be approached. You can find out more on this tricky issue for employers by attending our Employment Law Conference on 10 June.
We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch.
Right to work checks and changes coming in 2021 for European Nationals
What employers need to know to avoid civil penalties.
All employers have a responsibility to check the rights of their employees to work in the UK, and failure to do so can lead to prosecution for a criminal offence and/ or a civil penalty of up to £20,000 per illegal worker. Full guidance for employers is available on the government website, here.
Employers can protect themselves against civil penalties by ensuring that they check and retain copies of specified documents as evidence of the individual's right to work. We consider below some of the key issues regarding right to work checks that employers need to keep in mind and highlight some key changes for European nationals in 2021.
Who needs a right to work check?
Right to work checks should be carried out for all employees who started work from 29 February 2008 onwards, regardless of their nationality.
Who is an 'employee'?
An 'employee' is anyone who works under an employment contract or contract for services or apprenticeship - essentially anyone who is not in business for themselves as an independent contractor. The semi-exception to this is agency workers or contractors where an agency or service provider is the employer, in which cases the agency or service provider have the responsibility to carry out checks.
However, in order to minimise reputational risks, employers would be well advised to ask any service providers or agencies they use for a copy of their right to work policies, and assurance that they make their own satisfactory checks, to provide some peace of mind.
The right to work check process
There are essentially two ways that employers can carry out checks.
1. Physical checks - where the employer views original documents in the presence of the employee. The employer should check that the information on the document is accurate and matches the employee, whilst taking note of any expiry dates on entitlements to work.
Employers should take a signed and dated copy of these documents, which can be stored or dated electronically to show that the check was carried out on or before the first day of employment.
Important: temporary covid-19 concessions allow employers to perform physical checks via video calls (i.e. the document is held up by the employee to the camera for inspection), but the original documents should be checked as soon as possible. This relaxation of the rules will come to an end on 20 June 2021.
2. Online checks - these can be used where an employee has a Biometric Residence Permit ('BRP') or has been granted an immigration status under the EU Settlement Scheme (i.e. they have presettled status or settled status).
Applicants will complete a form online which generates a right to work share code, which is then provided to the employer who can use it together with the applicant's date of birth to complete a form online. The employer will then be able to check whether or not the applicant has the right to work and if there are any conditions/expiry dates.
Important: online checks will be the only way to check EEA nationals' rights to work from 1 January 2021 as their Status Outcome Letters from the EU Settlement Scheme are not proof of right to work. It is also not necessary to re-do right to work checks of EEA nationals who commenced employment before 31 December 2020.
What is the process?
The process depends on the nationality of the individual:
- British or Irish national: the employer can take a copy of their passport or alternatively copies of birth certificates and an official document with their national insurance number (for example their P45)
- EEA/Swiss nationals can present their passport or national ID card to employers up until 1 July 2021, after which these individuals will need to provide the relevant codes so that the employer can perform an online check
- Non-EEA nationals will need to provide evidence of their immigration status (e.g. a BRP) or provide details (such as their online reference number) so that the employer can perform an online check
Timing of checks
Checks should be completed before employment commences. This can be done before the first day or as part of day one on-boarding procedures. It is acceptable to check an individual's right to work status at interview, but this must be done for everyone to avoid discriminating against applicants.
Follow-up checks should be carried out if individual's right to work has expired or to check it has been extended, either under a new permit or due to an application to extend their right to remain working in the UK.
Documentation and the 'statutory excuse'
If it is discovered that someone is working illegally the employer may be able to claim the 'statutory excuse' from a civil penalty, which means that they can show they obtained certain documents establishing the individual's right to work. When looking to adopt a statutory excuse it is important to understand that there are three categories of documents which each have an effect on the length of time the statutory excuse will apply.
'List A' documents provide an unlimited statutory excuse. 'List B1' documents provide a statutory excuse until the expiry date of the documents, and 'List B2' provides a statutory excuse for six months.
For detailed guidance, employers should consider having a copy of the up-to-date Home Office's Right to Work Checklist, which can be used for all employees with physical documents, which can be found here.
Students and the right to work
Most international students in higher education have some work rights. In many cases students will be able to work a certain number of hours a week during term-time with the number of hours printed on the front of their BRP (if they have one).
Students might be able to work full-time if they are outside of term-time or if they are taking part in a course-related placement, Employers should make a specific check on the student's working hours and obtain a letter from the student's school or University confirming term dates or the dates of their placement.
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