What can and should employers be doing to help or educate any staff requiring EU settled status or pre-settled status by 30 June 2021, whilst avoiding the risk of discrimination or illegally employing staff without a right to work in the UK? How can employers protect themselves, whilst ensuring they lawfully recruit and retain the talent they need?
In this article, we look at some practical steps as well as the legal position to help employers address the issues involved.
Grace period on right to work checks for EEA nationals
As expected, free movement ended on 31 December 2020. However, European Economic Area (EEA) and Swiss nationals (collectively referred to as EEA nationals below) can continue to use their passport or national ID card for the right to work checks purposes until 30 June 2021 in line with the EU-Exit grace period.
The long awaited update to the Employer’s Guide to Right to Work Checks was published in December 2020. Although, there were no major surprises, formal guidance on how to check the right to work of EEA nationals after the transition period has been welcome.
The updated guidance confirms that there is no obligation to carry out retrospective checks on EEA nationals employed prior to the 30 June cut-off date. This seems to be consistent with the fact that so far checking of EEA national passport or ID document would have provided a continuous statutory excuse. Nevertheless, it is advisable to review the guidance again closer to the cut-off date in case there are further updates. It also contains a helpful reminder of the temporary adjustments in place as a result of the Coronavirus pandemic.
Encouraging applications for settled status for EEA nationals?
Under the withdrawal agreement reached between the UK and the EU, all EEA nationals (except Irish nationals) residing in the UK by 11pm on 31 December 2020 will be required to apply under the EU Settlement Scheme (EUSS) for settled or pre-settled status by 30 June 2021. This includes those who already hold a registration certificate or permanent residence card. Dependants who are non-EEA nationals must also apply for settled or pre-settled status in line with their EEA family member. It is the responsibility of the individual to make the application; an employer cannot apply on their employees’ behalf.
In order to help such staff or try to ensure there is no last-minute rush, it is tempting for employers to ask EEA nationals whether they have yet applied for settled status. However, this raises a number of risks, not least potentially discriminatory assumptions about who may or may not already be UK citizens, and employers should approach communications with the workforce very carefully.
Initial communications to staff
For most employers, it would be worth communicating to the entire workforce to avoid singling out any individuals in a discriminatory way. The Government has produced an employer’s toolkit not only with information on the EUSS for the employer, but with factsheets, leaflets, posters and promotional material to publicise the important points to its staff, including in many different languages. This was most recently updated on 31 December 2020. Materials could also be publicised on the employer’s intranet to ensure awareness about the EUSS.
Unless the employer already holds detailed records of nationality and start date with the organisation in the UK as part of its right to work checks (or possibly the same information with regard to UK employees working in the EEA) for all staff, it could choose to ask all staff to complete a short survey collecting this information. In this way, the employer can then give more helpful and targeted information for those members of staff who may be affected after 30 June 2021. This could also help with workforce planning. Don’t forget that employers are likely to be processing “Special Categories of Personal Data” under the UK GDPR (such as racial or ethnic origin or religion), but this should be justified by the requirement for the employer to comply with its legal obligation to prevent illegal working.
Communications to EEA nationals affected
Once the employer holds reliable data on staff who may need to apply for settled or pre-settled status, to highlight the need to take action (if they have not already done so), the employer could:
- invite them to the presentation contained in the Government toolkit,
- highlight helpful articles and tips and publicise the organisations offering assistance,
- run workshops or voluntary drop-in sessions to provide assistance on a one-to-one basis to talk through an individual’s plans or help to collate the relevant paperwork (without giving advice),
- point to Government information and advice websites.
This should be a supportive, soft-touch approach, sent out to the relevant group (or continued to be sent to the whole workforce if appropriate). It should not be targeted at any specific individuals, because the guidance referred to above confirms there is no obligation to carry out retrospective checks on EEA nationals employed prior to the 30 June cut-off date.
For this reason, it would also be inappropriate to ask EEA nationals specifically whether they have applied for EU settled status or pre-settled status, but the employee may of course choose to share their status voluntarily.
This would be done through the online checking service, which can be found here, which is also sometimes used for right to work checks. The employee would have to provide a “share code” to the employer to use this service. However, when conducting right to work checks, the employer must not try to force the use of this service to enable it to check EU settled status or pre-settled status, since the Right to Work Checks Guide referred to above makes it crystal clear that:
“You cannot insist that they use the online service or discriminate against those who wish to use their passport or national identity card.”
As a final step, the employer may want to remind all staff that if they are an EEA national who has not yet taken action, they should not delay in making the relevant application, as it could affect their ongoing employment. The employer could remind staff of the support available for those who are uncertain of what to do.
However, employers need to be clear that, at the moment, the Guide on right to work checks referred to above imposes no further duty on employers to check the immigration status of their existing EEA staff after 30 June providing the right to work check was correctly done at the time of recruitment. In other words, employers are not required to check whether these staff members have or have not applied for EUSS. It does state that new guidance to apply after this date will be published in advance, and of course we don’t yet know what this will say.
Uncertainty about right to work checks for new arrivals during the grace period
As mentioned, clarifications regarding the right to work checks on EEA nationals have been welcome. However, the ‘grace period’ arrangement has presented various practical issues and a level of uncertainty.
By way of background, any EEA national arriving in the UK for the first time on or after 1 January 2021 is required to obtain permission to work or apply under the EUSS, if available to them, to regulate their status. In most circumstances they may need to leave the UK to do so. Until appropriate permission or status is granted such individuals are not allowed to work in the UK. (By contrast, any EEA individual who arrived in the UK by 31 December 2020 would have their rights automatically protected by law in most cases, regardless of whether they have already submitted an application under the EUSS.)
As mentioned above, until the end of June 2021 employers are not required to check any documents in addition to the EEA passport or ID card. However, notwithstanding carrying out the checks correctly, the employer may inadvertently employ someone who does not have appropriate right to work as may be the case if the EEA national in question arrived in the UK in January 2021 for example. This could put the employer at risk of being found to employ illegally and being liable for civil penalty.
Normally, as long as the right to work checks are carried out in line with the guidance in place at the time, the employer has a statutory excuse against employing illegally and a civil penalty, even if it turns out that the person in question did not have the right to work after all. However, it is important to point out that if the employer knows or has reasonable cause to believe that the person does not have appropriate permission, the position becomes somewhat complicated as in line with the guidance a statutory excuse does not apply then:
It remains an offence to knowingly employ a person who is subject to immigration control and who is not allowed to undertake the work in question (by reason of their immigration status), or where there is reasonable cause to believe this is the case and the person is employed anyway.
In practical terms, since the guidance does not require the employers to obtain anything other than an EEA passport or ID, employers are not obliged to ask for any additional information for new recruits until the end of June or try to establish when the EEA national arrived in the UK.
That said, as one can imagine, in practice it would be very easy for the employer to become aware that the EEA national arrived in the UK in January (to follow the example above) and as such they may not have appropriate permission to undertake employment. In such circumstances, it is best practice to investigate the position further before the employment starts in order to establish whether the EEA national in question has the right to work in order to avoid any risk of being found to employ illegally and in line with the employer’s general duty to prevent illegal working. Similarly, action may need to be taken if the employer becomes aware, after 30 June 2021, that the employee has not applied for EU settled status or pre-settled status.
The silver lining perhaps is that this issue is not relevant to any existing (pre-31 December 2020) employees as their rights in the UK are automatically protected until the end of June. Also, once the grace period ends this matter should become less relevant as employers will be allowed, or even obliged, to ask new EEA national recruits for appropriate evidence of the right to reside in the UK.
Lastly, it is worth emphasising that is has never been more important to make sure that the right to work checks on all EEA nationals are fully up to date and carried out precisely in line with the guidance.
Our unique blend of Immigration and Employment lawyers working together mean that we are well placed to advise on the steps and timing of this issue as well as any reasonable cause to believe that a new recruit has arrived in the UK after 1 January 2021.
This article has been co-written by Monika Jones and Paul Hayward.
For Right to work checks and Immigration queries please contact Monika Jones.
For Employment aspects and planning staff communications/procedures please contact Paul Hayward.
This article is part of the Employment Law Newsletter – Winter 2021
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