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As a result of the COVID-19 pandemic, on 30 March 2020, the Government temporarily suspended the requirement for employers to see original documentation in order to carry out right to work checks.

As an alternative, employers have been able to request a scanned copy of the original identity documents and to follow up with a video call to confirm the authenticity of the documentation. The check would then be recorded as a modified check due to COVID-19. However, it was made clear at the time that employers would be required to carry out a retrospective check (having sight of the original documents) within 8 weeks of the temporary measures coming to an end.

From 17 May 2021 onwards, employers must check an individual’s original right to work documentation prior to commencing work. Once this is satisfactorily done, it will establish a statutory excuse against illegal working. Alternatively, if an employee has status under the EU Settlement Scheme or a Biometric Residence Permit, employers can use the electronic right to work portal to verify an individual’s right to work.

It is important to note that the requirement for retrospective checks has been rescinded and individuals whose right to work check was carried out between 30 March 2020 and 16 May 2021, on the basis of the previous COVID-19 concession, do not require a retrospective updated check on their original document. The employer will have a continuous statutory excuse on the basis of the modified check, provided it was taken in line with the guidance in place at the time of the check being undertaken.

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