| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
New Right-to-Work Checks: 4 Steps to Compliance
From 1 July, new rules apply when you carry out right-to-work checks on EEA nationals. You can no longer check their passport but must use the government’s online service. Getting this wrong could result in a civil penalty of up to £20,000 per worker, closure of the business, removal of any sponsor licence or even an unlimited criminal fine or 5-year prison sentence. The government has also extended its Covid-19 concession again enabling you to carry out remote right-to-work checks on all job applicants. Here, we set out 4 actions to take to take in light of these developments.
- Familiarise Yourself with the New Code of Practice and Guidance
The Home Office has published an updated draft Code of Practice on Preventing Illegal Working and accompanying guidance which you must follow. These contain revised lists of the physical documents you should use to carry out checks. The most important change is that EEA passports are no longer acceptable evidence of a person’s right to work unless they are an Irish national.
Note that the code only applies from 1 July. If you carry out your check before that date, you can take a copy of the job applicant’s EEA passport or ID card even if they start work on or after 1 July. You must not insist on doing an online check but can do so if they agree.
- No Action Needed on Existing Staff
You don’t need to check whether existing staff from the EEA have obtained settled or pre-settled status. However, if they volunteer to share their digital record of their status with you, you can keep a copy on their file. Nor do you have to carry out retrospective right-to-work checks on them. As long as you checked their passport or ID card before they started working for you, this gives you a defence against a civil penalty if it transpires the person is working illegally.
- Carry Out Online Checks on Job Applicants with EEA Nationality from 1 July
From this date, you must use the government’s digital service if a job applicant is an EEA national. You must:
- Ask the person for their share code and date of birth and enter this information online at: gov.uk/view-right-to-work.
- Check the person is entitled to do the work in question. If they have settled or pre-settled status, they can work in any job. If they have a visa, there will be limits on the role they can perform.
- Confirm the online photo is of the job applicant.
- Retain an electronic or printed copy of the person’s right to work throughout their employment and for 2 years afterwards.
- Diarise any follow-up checks that are necessary. If the person has pre-settled status or a visa, there will be a limit on how long they can work in the UK. In this case, remind the employee to renew their visa or apply for settled status and then redo the check.
- Watch Out for an End to Remote Checks
The government temporarily relaxed the rules on face-to-face right-to-work checks during the pandemic because many people were required to work from home. The revised process permits you to carry out a remote check via videocall and using copies, rather than originals, of any documents. Originally, the government said you would have to carry out in-person checks retrospectively but it has now scrapped this requirement.
After an initial extension, this concession was due to end on 20 June. However, given the delay in lifting remaining Covid restrictions, remote checks will continue to be permitted until 31 August.
The government is under pressure to retain remote checks permanently to increase efficiency for employers. However, you should check the position in late August. For now, you can keep carrying out remote checks, following the process set out in the government’s guidance on Coronavirus (Covid-19): right to work checks.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Covis-19: Can Employees Sue Me and How Can I Protect Myself?
Watch daytime TV and it won’t be long before you see one of those ‘have you been injured at work?’ compensation ads. So far, little has been said about Covid-based claims by employees, but it could be just a matter of time before the coronavirus compensation bandwagon starts to roll. Individuals do, though, face huge legal hurdles in getting such claims to stick, and even now there are actions directors and managers can take to protect their firms.
It’s very early days, but we have spotted signs that claims companies are beginning to look at coronavirus as a possible new line of business. In September 2020, compensation specialist Thompsons launched a ‘Covid as a result of your work’ questionnaire in partnership with the Unison trade union, and just last week, we spotted another firm advertising on Facebook.
When are Employers Liable?
Claims for workplace injury and ill health go right back to the industrial revolution, so liability principles are well established:
- Organisations automatically have a duty of care to their employees.
- Employers are liable to pay compensation when their negligence or breach of statutory duty leads to employees being harmed. (Negligence means failing to take reasonable care, breach of statutory duty means not following the health and safety rules in force at the time.)
- Most UK firms must by law carry insurance to cover possible claims. With this in place, claims usually target the employer corporately rather than individual managers or directors personally.
In any compensation case, the initiative lies with the person bringing the claim. To succeed, they must prove their employer was either (a) negligent or (b) in breach of statutory duty (or both), and that this led directly to the injury/illness they suffered. However, proof only needs to be ‘on the balance of probabilities’. Also, any benefit of the doubt is usually given to the claimant rather than to the target firm.
Hurdles for Employees
Even where employers fail to do all they should, claims still need to pass the ‘but for’ test. This is about causation: could the claimant’s harm have come from other plausible causes? With so many possible vectors of Covid transmission, and the impossibility of knowing exactly how you got infected, many claims will fall at this hurdle.
Thompsons themselves warn: ‘Coronavirus personal injury claims are not going to be straightforward as the claimant needs to prove exposure came from the workplace rather than elsewhere. If, for instance, you’re a nurse who has contracted the condition after working in a ward with patients suffering from the virus, employers may seek to suggest that the infection could equally have come from your local supermarket, from a relative or the bus you took to go home.’
5 Ways to Protect Your Organisation
So, what actions can employers take to protect their interests? Key steps include:
- Contact your insurer for advice if you receive a claim, or suspect that one is on the way.
- Be ready to show that you scrupulously followed the government’s recommended ‘Covid-secure’ precautions for your sector as set out by gov.uk here and the Health and Safety executive here. ‘No blame’ means ‘no claim’.
- Check that you have a current Covid-secure risk assessment: if you’ve updated it as the pandemic progressed, keep a record of amendments as well as all previous versions.
- Record all steps you took to minimise the risk, for example, establishing social distancing, providing better ventilation and improving cleaning/sanitisation.
- Be able to set out what awareness training you gave.
Here, bear in mind that claims are made by individuals or groups, so ideally you want to be able to show how you protected any given individual/group. It doesn’t help to say you ‘provided staff training’ unless you can prove that the people who are claiming got that training. For this reason, make all your records as specific as possible so that you can rebut claims that you did not take proper care.