Employment and Immigration Law Update – Right to work checks for EU nationals

We have now left the EU. However, under the terms of the Withdrawal Agreement we are in a “transition period” until 31 December 2020. During the transition period, EU rules continue to apply. This includes free movement of people.

EU nationals can continue to come to the UK throughout this year and will then be able to apply for pre-settled status before the deadline of 30 June 2021. Similarly, British nationals can continue to travel freely to the EU until 31 December 2020.

The Government has confirmed there will not be any changes to right to work check requirements until 1 January 2021. If a prospective employee produces an EU passport or ID card, this will be sufficient for the potential employer to complete the right to work check. These documents continue to be in List A of the Home Office guidance, which means that no follow up checks are required.

It is best practice for employers to support employees with applications for pre-settled and settled status, for example by providing information and where appropriate access to a smartphone in order to smooth the application process. We appreciate that employers are keen to check everything is in hand and that individuals are not experiencing any difficulties. However, we are concerned by suggestions that employers wish to check their EU staff have applied.

The Government guidance is clear, that employers are not currently required to check that current or prospective employees have obtained pre-settled or settled status. If an employer still decides to ask EU nationals to provide evidence that they have applied under the settled status scheme, they may be at risk of race discrimination claims, as this additional requirement is not being applied to others who have produced list A documents (for example British nationals).

EU nationals are being given the message that employers are not entitled to ask for proof of pre-settled or settled status and doing so risks damaging employee relations. There are also issues under the GDPR, as the employer may struggle to show why it needs to process this personal data.

In addition, we believe that asking for this evidence when it is not required actually increases the risk to the employer of prosecution under the prevention of illegal working rules.

Where the employer has completed a valid pre-employment right to work check by checking an EU passport or ID card, that will provide a statutory excuse against the civil offence of unknowingly employing an adult with no right to work. No further check is required.

However, that pre-employment check would not provide any defence to the criminal offence of knowingly employing an adult with no right to work. This could arise if the employer knows (or ought reasonably have known) that an EU national is continuing to work after the 30 June 2021 cut-off date, when they have not applied for pre-settled or settled status. If the employee tells the employer they have not applied and have no intention of doing so, the employer would be fixed with that knowledge and may well wish they had not asked the question!

Our advice is that employers should adopt a supportive approach and make it clear that help is available. If employees volunteer that they have obtained status under the scheme that is fine. However, it is not for employers to police that EU nationals have applied.

This article is from the February 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Immigration Team.