With the UK's departure from the European Union finally taking place on 31 December 2020, the UK will be leaving the EU's system of free movement. As a result, from 1 January 2021, EU nationals entering the UK for the first time will be subject to the same rules as other non-UK nationals. Employers need to ensure that their hiring practices reflect the new rules. However, due to unhelpful Government guidance, this is not straightforward.
Existing EU staff: EU nationals who entered the UK before 31 December 2020 need to apply for settled status by 30 June 2021 – but, the earlier they do this the better, to ensure that they have evidence that they were living and working in the UK legally prior to the end of the transition period. EU nationals with settled or pre-settled status will be able to live and work in the UK as they can currently. There are also special arrangements for Irish citizens, who will be able to live and work in the UK whether or not they have obtained settled or pre-settled status (and whether they arrived before or after 31 December 2020).
Right to work checks: Under the new immigration rules, EU nationals who enter the UK from 1 January 2021 onwards will be eligible to work only if they have a visa entitling them to work. In principle, therefore, employers would need to hire them under a sponsorship visa if they met the criteria (including minimum salary requirements). However, the government guidance says that employers should check the right to work of EU nationals only from 30 June 2021.
So how are employers supposed to tell whether an EU national arrived before or after 1 January 2021? This is a difficult area, as employers need to consider the risk of employment discrimination claims as well as illegal working issues.
The Government has said that employers won't need to conduct retrospective right to work checks for EU nationals employed before 30 June 2021. That gives employers some comfort from an enforcement perspective, but the difficulties with hiring an illegal worker aren't limited to Home Office penalties. There are also the practical issues of having to withdraw employment offers and unwind arrangements.
One option is to make enquiries during the hiring process as to when the individual entered the UK. Pragmatically, that may be what many employers end up doing. However, this approach entails risks. If an offer were withdrawn (or not made) because an EU national stated that they had arrived after 31 December 2020, this could result in a claim for indirect discrimination and the employer would need to justify its policy of not hiring such individuals under a sponsorship license.
In previous discrimination cases, the Employment Tribunals have been somewhat unsympathetic to the dilemmas faced by employers trying to balance potential indirect discrimination against the legal and practical problems caused by hiring someone without an existing right to work in the UK.
The existing Government guidance on avoiding discrimination while preventing illegal working does not satisfactorily address this issue and the difficulties will be magnified under the new rules.
Hopefully the Government will issue further guidance to clarify this difficult area. In the meantime, businesses will need to try to tread the narrow line between avoiding discrimination and making prudent checks as to right to work.
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