We have commented before that, in the past year, there have been a large number of changes to the Right to Work (“RTW”) check process.  Much of this has been driven by the enforced move to remote and hybrid working caused by the pandemic.

As a reminder, RTW checks must be undertaken by employers on:

  • all new employees before they start work; and
  • all existing employees who have a time limited permission to remain in the UK before this permission expires.

Failure to comply with RTW rules may result in the employer being charged with either a civil or a criminal penalty.

Covid-19 adjustment

At present, under the Covid-19 adjustment, employers may check someone’s RTW either:

  1. remotely, by comparing an electronic or paper copy of the individual’s documents with the originals that the individual holds up whilst the employer is on a video call with them. The employer must record the date the check is made and mark it as “adjusted check undertaken on [insert date] due to COVID-19″; or
  2. with the individual’s permission, using the on-line RTW service if the individual has one of the following:
    • Biometric Residence Permit (“BRP”); or,
    • Biometric Residence Card (“BRC”); or,
    • status under either the EU Settlement Scheme or the Points Based System.

Changes from 6 April 2022

As of 6 April 2022, employers will no longer be able to carry out a RTW check on the basis of seeing an original, or a copy, of a BRP, BRC or frontier work permit.  Employers must instead use the on-line RTW service for individuals who hold these documents.

On 17 January 2022, the Home Office published a new Appendix F to the Employer Right to Work Checks Supporting Guidance, which provides some limited information for employers regarding using the new digital identity verification process to undertake RTW checks on those who hold British or Irish passports:

An employer’s guide to right to work checks (publishing.service.gov.uk)

Identity Document Validation Technology

The government intends to implement an Identity Document Validation Technology (“IDVT”), which Identity Service Providers (“IDSPs”) will be able to use to verify an individual’s immigration status on behalf of employers and landlords.

This is part of the Home Office’s plan to digitise the immigration and border control process as much as possible in the next few years.

The plan is that, from 6 April 2022, employers will be able to use the new IDVT to undertake the RTW check on individuals holding a British or Irish passport.

At present, there is very little information regarding how the digital process will work.  It is anticipated that there will be a fee charged for each check, which will be levied by the IDSP, which could reportedly range anywhere from £1.45 to £70 per check, depending on the level of service provided by the IDSP.

If an employer has undertaken a compliant RTW check on or before 5 April 2022, they will not have to undertake any retrospective checks once the new process comes in.

Biometric Residence Permits’ validity

Due to further changes that the Home Office intends to make in 2024, since 2021, BRPs have not been issued with a validity period beyond 31 December 2024.  Therefore, if an employer undertakes a RTW check on the basis of seeing the original, or a copy, of the BRP, a further RTW check may have to be completed under the process in place in December 2024.

To avoid having to make an early second check on affected employees, we advise that employers use the online RTW service where possible.  This will evidence, in a way that meets compliance requirements, that an individual, who has immigration permission which expires after 31 December 2024, has the RTW to that later date.

The process is as follow:

  1. once the individual has their BRP and passport, they should go online to complete the form here: Prove your right to work to an employer – GOV.UK (www.gov.uk);
  1. this will generate a share code, valid for 30 days only, which the individuals will need to provide to the employer to enable them to view the RTW through this site: View a job applicant’s right to work details – GOV.UK (www.gov.uk);
  1. on completion, this will generate confirmation of individual’s RTW status. Employers should check that the photograph and details match the individual.  At present, this can be done by video call but employers may have to check the details in the individual’s physical presence from 6 April 2022;
  1. if the details match, the page should be downloaded and saved to evidence compliance by the employer.

Employers need to be aware that the current online service cannot be used to verify the RTW of British or Irish citizens.

Conclusion

This new process is being introduced following feedback from employers that they found the Covid-19 adjusted RTW check process user-friendly and were keen not to revert to the old manual process in light of the move to more employees undertaking remote or hybrid working.

However, the sceptical are not convinced that the Home Office will have the IDVT fully operational by 6 April 2022.  Indeed, IDSPs could not apply for certification to be a licensed service provider until last month.

Currently, there are no plans for the Home Office to allow the current Covid-19-adjusted RTW process to run in tandem with the new process, in case there are any teething problems.  However, as we approach 6 April 2022, I would not be surprised if we end up writing yet another blog post confirming the extension of the Covid-19-adjusted RTW check process until such time as the IDVT process is properly bedded in.

The Employment Tribunal has recently held that a claimant’s belief in a fear of catching COVID-19 and a need to protect herself and others does not amount to a philosophical belief under the Equality Act 2010.

The Claimant argued that her decision not to return to the workplace in July 2020 was because she had reasonable and justifiable health and safety concerns about the workplace as a result of COVID-19 and was worried about the spread of the virus.  She had a genuine fear of getting the virus and passing it to her partner, who is considered high risk.  She therefore brought a claim for discrimination when her employer stopped paying her wages when she refused to return to work.

The Employment Tribunal held that the Claimant’s fears did not amount to a belief but rather it was a reaction to a threat of physical harm and the need to reduce that threat.  They could be described as a widely held opinion based on the present state of information available.  In addition, the Employment Tribunal found that, because the Claimant’s fear was about protecting herself and others (in particular, her partner), it did not satisfy the requirement that the belief must be about weighty and substantial aspects of human life and behaviour.

This case is helpful for employers who want their staff to return to the office now the current work from home guidance has been lifted by the Government.  However, employers should still consider any objections about returning to work or other post-pandemic workplace issues on a case-by-case basis because there remains the risk of other types of discrimination claims.  These discrimination risks may be particularly relevant in the context of the approach employers decide to take to vaccinations and access to the workplace, in particular, whether mandating proof of vaccination, for example, is an acceptable condition for access to the workplace.  For further information, please see our Employer Guide on Vaccines: COVID-19: Employer Guidance on Vaccines | Perspectives & Events | Mayer Brown

The Pensions Regulator (the “Regulator”) has announced that it will not now consult on a revised defined benefit (“DB”) funding code of practice until late summer 2022.

Background

The Regulator’s current code of practice on DB scheme funding came into force in 2014. In 2020, the Regulator carried out the first of two consultations on a proposed revised code of practice. This first consultation covered:

  • The Regulator’s proposed new regulatory approach to DB funding.
  • The principles the Regulator thought should underpin the new DB funding framework.
  • How those principles could be applied in practice to provide clearer guidelines.

The Regulator was due to carry out its second consultation, on a draft of the revised code, in 2021.

The Pension Schemes Act 2021 introduces a requirement for trustees of DB schemes to produce a written funding and investment strategy. This must specify the funding level that the trustees plan for the scheme to have achieved by a particular date (to be determined by regulations). It must also detail the investments that the trustees intend the scheme to hold at that date. The strategy must be agreed with the employer. Regulations will set out further detail on what the strategy needs to cover. The Regulator’s revised code of practice is also intended to provide additional guidance.

Regulator announcement

According to the Regulator, the government will consult this spring on draft regulations setting out the detail around the new funding and investment strategy requirement. The Regulator wants to take account of that consultation before publishing the draft code for consultation. It therefore expects to publish its consultation in late summer. The Regulator’s announcement also confirms that the new code will only apply to scheme valuations with an effective date falling on or after the date on which the code comes into effect.

We will be featuring contributions from our global Employment and Benefits team on this blog, highlighting particular topics and issues of interest to UK employers with operations overseas.

The new year has started with a range of new COVID-19 measures in different jurisdictions. Here are two recent updates from our teams in France and Hong Kong:

Our Employment & Benefits team in Hong Kong produce the “Asia Employment Law: Quarterly Review”, a publication covering 15 jurisdictions in Asia.

In this thirty-third edition, they flag and comment on employment law developments during the third quarter of 2021 and highlight some of the major changes on the horizon.

For other recent commentary from our Hong Kong team, please click here. If you or a colleague would like further guidance on employment and benefits issues in Hong Kong, please contact Duncan Abate, Hong Tran or Jennifer Tam.

The Pensions Regulator (TPR) has published a revised version of its code of practice on contribution notices. TPR has updated the code to cover the two new grounds for issuing a contribution notice – the employer insolvency and employer resources tests. The updated code came into force on 25 November.

Continue Reading Contribution notices – updated Pensions Regulator code of practice

The Pension Protection Fund (PPF) is consulting on its draft levy determination for the 2022/23 levy. The PPF currently has a strong funding position. It therefore intends to set the 2022/23 levy estimate at £415 million, £105 million less than in 2021/22. Around 82% of schemes that pay the risk-based levy will see a levy reduction. The consultation closes on 9 November.

Continue Reading Pension Protection Fund levy – lower levies expected in 2022/23

James Perrott, Counsel at Mayer Brown in the Employment & Benefits practice of the London office, and Head of the firm’s Global Mobility & Migration practice in Europe, comments on the struggle European firms in London are facing to get European lawyers into the UK due to post-Brexit immigration issues. The article “Red Tape, Rising Costs and Travel Woes: How Post-Brexit Rules Are Hampering European Firms In London” published on law.com can be read here: https://www.law.com/2021/10/12/red-tape-costs-and-travel-woes-how-post-brexit-rules-are-hampering-european-firms-in-london-292-97745/

It has been over a year since the new Section 1 requirements came into force.  Following on from our initial Employer Perspectives update in March 2020, this post looks at some frequently asked questions and practical tips on dealing with some of the more tricky requirements.

A quick recap of the law

The law requires that employers now provide written statements of key employment terms to employees and workers whose contracts started on or after 6 April 2020.

In particular, the statement should give detail in writing about any paid leave to which they are entitled; which days of the week they are required to work and, if there can be any variation to this, how that variation will be determined; details of all benefits that will be provided by the employer; details of any probationary period, including duration and any conditions; and any training entitlement provided, including whether it is optional/mandatory and how the cost of this training is to be covered.

This is a “Day 1 Right” and so employers will, in most cases, need to ensure that they are providing employees/workers with written particulars on or before the date on which work begins.

Frequently asked questions

1. Does the obligation apply retrospectively?

No, the obligation only applies to employment contracts entered into after 6 April 2020.  However, there are instances where employers would need to provide a compliant statement to employees and workers whose contracts started before 6 April 2020.  Firstly, these employees and workers are entitled to request a newly compliant Section 1 statement.  If they do so, employers will need to provide this within one month of such a request.  Secondly, if there are any changes made to any of the new information required to be given or the employee or the worker is re-engaged, then an updated Section 1 statement would also need to be provided.

2. If we include a statement specifying the training requirements, and these requirements subsequently change, do we need to issue an amendment each time this occurs?

If requirements subsequently change, this would technically require employers to issue new written statements.   Under the Employment Rights Act 1996, if there is any change to any of the required statutory particulars of employment, the employer must give the employee or worker a written statement containing details of the change at the earliest opportunity and, in any event, no later than one month after the change.  We understand that this can be onerous, particularly with large workforces, which is why we suggest taking the approach of listing the key mandatory training courses and then letting employees know further details will be provided regarding subsequent requirements.

3. What are the consequences for non-compliance?

Employees can only bring a tribunal claim for failure to provide a full section 1 statement if they are also bringing another specified claim in the tribunal, and that other specific claim is successful. The compensation for failure to provide a section 1 statement is capped at two or four weeks’ basic pay, currently £1,088 or £2,176, respectively.

Some practical tips

  • Don’t forget that the workers are now entitled to a section 1 statement.
  • Ensure that your contracts  are compliant with the section 1 requirements – review and update your contracts of employment and worker contracts so that they contain all the information they need.
  • In particular, consider whether there have been any changes to the key particulars since April 2020 (particularly as certain particulars may have changed as a result of Covid-19).  Ask yourself whether you need to make any changes to any reissued contracts.
  • Consider pragmatic options for the more burdensome provisions of section 1, as noted at 2 above in terms of training requirements.

Comment

It is likely that employers will continue to take a pragmatic view of section 1 requirements, given the low financial penalties.  However, reputation as an employer that complies with the most basic of legal requirements is important, regardless of financial penalties.  At a time when many clients are refreshing contracts to reflect post-COVID changes, this a good opportunity to ensure that your employment and worker contracts are section 1 compliant.