Episode 158: We explore the ways organisations can be designed to enable flexibility in the face of a crisis, how organisations can and should respond to the coronavirus outbreak and how best to support your workforce through this difficult period.
Q: When I’m recruiting the law requires us to physically see proof of right to work in order to hire. What happens when contact is restricted. Does that mean no-one can hire?
Employers do not always physically need to see paper proof of a right to work in the UK in order to hire. Where contact is restricted employers can still hire.
There are normally two main ways to check right to work documents - online and manually. Now there is a third way - a video call method to enable employers to continue to hire. The Home Office released guidance on 30 March, regarding right to work checks during the pandemic. From this date all right to work checks can be carried out using video calling without the employer seeing an employee's original documents in person. Employers must retrospectively check original documents in the normal way once the special pandemic measures have ended.
Urgent increases of staff are needed especially if they are engaged in a critical sector, for example healthcare or food supply. There are many people whose work has been affected by coronavirus closures and who are seeking new roles, despite the new government scheme to help employers retain staff on the payroll.
For more information on how to carry out the three methods of checking right to work documents see the FAQ 'How do employers conduct video call right to work checks during the coronavirus pandemic?'
Right to work checks remain unchanged until 31 December 2020. When recruiting, employers will know that EU citizens can still enter, live and work in the UK (although this will be limited due to the current coronavirus travel restrictions) until 31 December 2020.
EU citizens living in the UK before 31 January 2020 have until 31 December 2020 to apply for settled status. Those arriving after 31 January 2020 can apply for European temporary leave to remain until 31 December 2020 which then provides the ability to live and work in the UK for three years. From 1 January 2021, there is a new immigration system for new arrivals.
Q: How do employers conduct video call right to work checks work during the coronavirus pandemic?
Instead of conducting the normal manual document checks in person, employers can now conduct video call checks during the continuation of the coronavirus measures.
Employers should still check normal acceptable documents to evidence right to work, listed in the right to work check guidance normally passports, biometric residence permits, identity cards or birth and naturalisation certificates following the method below.
The prospective employee emails a scanned copy or a photo of their original right to work documents via email or mobile. The employer then:
- Has a video call with the worker who holds up the original documents to the camera.
- Checks the documents being held up against the digital copy of the documents.
- Records the date of the check in the usual way.
- Marks the document copy as an 'adjusted check undertaken on [X date of April or May] due to COVID-19'.
If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme the employer can use the digital right to work checking service while doing a video call if the job applicant gives permission
After the coronavirus measures end, employers must carry out retrospective checks within eight weeks of the measures ending. Records of both checks must be kept on file for all employees whose documents were checked under the special measures.
Other checking methods should still be used if the employee cannot show their documents at all. See the Home Office guidance on right to work checks during the temporary COVID-19 measures.
The previous two methods of checking, online and manual checking, can also be undertaken, as outlined below.
Digital online checks
The normal digital right to work checking service is still operational and allows employers to check whether staff have the right to work in the UK digitally without taking physical copies of the original documents.
The digital service is available on the government website and is a free method for employers to check the following prospective employees:
- Non-EU (or EEA) nationals holding biometric residence permits or cards.
- EU citizens who have been granted settled status, pre settled status or temporary leave to remain under the EU Settlement Scheme.
The prospective employee must choose to join the online checking service which generates a ‘share code’ which they can then share with the intended employer. The employer still must keep evidence of the right to work check, usually a PDF of the profile page confirming the right to work with the individual’s photograph and the date of the check.
Employers should save the profile page electronically or in hard copy, for the length of the individual’s employment and two years afterwards. Employers then confirm to the employee that they are keeping this data to ensure compliance with data protection provisions.
Other applicants such as EU/EEA nationals who do not have settled status will still have to prove their right to work through documents, such as their passport in the traditional manual check or the video call method.
Manual right to work checks involve obtaining original versions of the identity documents and checking their validity, photographs, dates of birth and expiry dates in the presence of the prospective employee.With social distancing these physical checks are more difficult and the video call check should be undertaken instead in many cases. Some employers may still be attending a workplace as normal, for example, if they are key workers. If the representative of the employer and the prospective employee have no symptoms (and neither have been advised to self-isolate) it may be possible to take a photocopy of documents, provided NHS advice is followed, including washing hands after handling the document.
There are several companies that offer document validation and authentication of documents ranging from mobile-phone software to specialised document scanners which check the authenticity of documents. The government offers guidance on document scanner technology.
Sometimes where an applicant applies from overseas the original right to work documents can be authenticated by a notary and checked before commencing work when the contract is issued.
Employers who either intentionally employ illegal workers or who fail to conduct the correct checks will face penalties if the employees are subsequently discovered to have immigration status which does not permit work in the UK. Conducting any of the above methods of checking provides employers with a statutory excuse that the employer has verified the employee’s right to work in the UK. The defence helps avoid fines if the prescribed checks were carried out in good faith, although fines are rare.
Q: What happens if employees have visas that expire and cannot be renewed during the coronavirus pandemic?
A practical problem during the pandemic is that most visa application centres in and outside the UK have closed and appointments have been cancelled. Many visas and biometric applications and appointments therefore cannot be processed within normal timescales.
The Home Office guidance says that anyone in the UK whose leave expires between 24 January 2020 and 30 May 2020 must contact the Home Office via email to have their UK visa extended to 31 May 2020.
Until 31 May non-EEA nationals on a short-term visa can switch to a long-term visa from within the UK, instead of being required to go to their home county to make the application.
A variety of other changes affect other applicants including doctors, nurses or paramedics working for the NHS whose visas are automatically extended by one year if due to expire before 1 October 2020. Staff do not need to apply as NHS employers will identify staff eligible for extensions. Family members with visas due to expire then will also have their visas extended.
Other changes include some affecting those on Tier 1, 2,4 and 5 visas. Normal requirements have been altered for example to accommodate employees who have been furloughed. There are also relaxations of the current restrictions on the number of hours certain visa holders can work or volunteer for the NHS as a doctor, nurse or paramedic for tier 4 students, tier 2 workers where the NHS job is a second job.
EU citizens changes
When recruiting, employers will know that EU citizens can still enter, live and work in the UK (although this will be limited due to the current coronavirus travel restrictions) until 31 December 2020.
EU citizens living in the UK before 31 January 2020 have until 31 December 2020 to apply for settled status. Those arriving after 31 January 2020 can apply for European temporary leave to remain until 31 December 2020 which then provides the ability to live and work in the UK for three years. From 1 January 2021, there will be a new immigration system for new arrivals.
A final problem is that documents sent by the Home Office which require a signature (such as returned passports or biometric residence permits) may be going to a delivery address which is now closed; and the whole process is subject to delays. If an applicant has specified a now closed address, they should update the Home Office as soon as possible.
Q: How do employers conduct disciplinary and grievance processes during the coronavirus restrictions?
Since the government’s advice on the 23 March employers have implemented home working wherever possible. A minority of employees may be on suspension pending a disciplinary process, and other disciplinary and grievance processes may be outstanding. Acas have now released guidance on carrying out disciplinary and grievance procedures during the coronavirus pandemic and employers can consider the following points.
The approach employers can take will depend upon the nature of the offence or complaint, whether the workplace is open and the proximity to the end of the lockdown measures (you should refer to the official government guidance on this). Some minor offences may be resolved by an informal telephone discussion. More serious matters may need the approaches referred to below. Once the government announce a loosening of the lockdown measures employers will be able to schedule normal disciplinary processes to start once normal work resumes.
If the workplace is closed and in person hearings are not possible the following main options are available:
Pausing the relevant process
Pausing disciplinary and grievance processes until the crisis has passed has some advantages. Some relevant managers, HR and witnesses will be working from home or on furlough leave and may have difficulty in proceeding with the process. In some cases, the investigation may not be possible remotely and pausing the process may be the obvious solution.
Pausing the process has the disadvantage of increasing stress for the employee. It may also mean there is an unresolved clash between employees which could cause further problems if they are still working together either in the workplace or from home.
If the process is paused this should be explained to the employee and ideally their consent should be obtained. If the employee prefers to have the disciplinary or grievance paused for a few weeks until an in-person hearing can be arranged this is a safer course of action for the than insisting on a remote hearing. However, if the matter is very serious the employer may be unable to pause the process.
Continuing with investigations and hearings
Mangers who are working from home can, and do, conduct investigations into disciplinary and grievance matters from home and hold hearings remotely. If this process is followed this should be explained to the employee and ideally their consent should be obtained.
The investigating manager can discuss matters with the employee concerned, with witnesses taking careful notes. Interviews can be recorded as long as consent is obtained. Other evidence such social media posts or emails can be undertaken remotely. The employees, witnesses and companion must all have access to, and the skills to use any requisite technology.
The investigation must be fair and thorough. At the end of the investigation the employer will have to decide whether it would be appropriate to hold the disciplinary or grievance hearing remotely or suspend the process until further investigation is possible. If the employee is accused of gross misconduct and the potential outcome of the disciplinary hearing is dismissal, extra care should be taken to minimise any disadvantages to the employee resulting from the remote hearing process. If the employer concludes that it is possible to hold a remote hearing this should not make a dismissal unfair, provided that all other steps are fair and thorough including the investigation and the evidence. The employee must be given full details of the allegations, time to consider them and the right to have a companion involved.
An employee may refuse consent and (if advised) could attempt to argue that holding hearings remotely is a breach of the implied term of trust and confidence which would lead to the potential of resignation and constructive unfair dismissal claim.
If any of the parties involved are on furlough leave the situation becomes more complicated; see our FAQ If employees are on furlough leave can they participate in disciplinary and grievances processes for more information.
Q: Are employees who transferred under a TUPE transfer after 19 March eligible for furlough?
Employers of new employees who transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) after 19 March 2020 will be eligible to furlough them.
The government have confirmed that under the coronavirus job retention scheme new (transferee) employers can claim for employees of a previous business transferred after 19 March 2020. Any businesses completing business transfers or service provision changes around the March to May time period should check current advice if intending to furlough employees upon completing the transfer.
TUPE protects employees on the sale of a business or following an outsourcing of a service so that the employees and any liabilities associated with them move from the previous employer to the new business.
Traditionally TUPE only operates to transfer all “rights, duties, powers and liabilities” under the employment contract between employer and employee but does not transfer rights from third parties such as government grants. The new employer also does not have the right to obtain all of the payroll data from the transferor it would need for any furlough claims to HMRC.
New employers severely affected by coronavirus may be unable to provide work to the new employees but could be already committed to acquiring them. These employers may need to furlough the new staff otherwise it would mean redundancies.
The furlough scheme applies to those on the new employer’s payroll on or before 19 March, but HMRC have confirmed that employees transferring into a new business after that date will be eligible under this scheme. These employees will effectively be treated as though they were on the new payroll on 19 March 2020. The TUPE or PAYE business succession rules must apply to the change in ownership.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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