Right to Work Checks After Brexit
Following the UK’s departure from the European Union, and the end of the transition period on 31st December 2021, employers may be wondering about their obligations around right to work checks for their European employees, and whether they need to carry out any additional checks.
Whilst immigration and right to work checks are outside the remit of employment law and we cannot provide specific advice on individual cases, we have collated responses to some of the more general queries that clients have come to us with over the last few months.
What is settled/pre-settled status?
EEA citizens who lived in the UK before 1 January 2021 had until 30th June to apply for pre-settled or settled status, allowing them to retain the right to live and work in the UK. Essentially, EU citizens who are able to demonstrate they have lived continuously in the UK for five years or more will be entitled to apply for settled status. Employees who have lived in the UK for less than 5 years but arrived in the UK on or before 31 December 2020 will be eligible for pre-settled status.
Can I ask existing employees about their settled status?
Employers can invite employees to evidence their right to work using the Home Office online service to check whether an employee has applied for pre-settled or settled status in the UK, and consequent right to work. However, there is no requirement for you to ask current employees about this.
Do I need to retrospectively check existing employee’s right to work?
There is no mandatory requirement to carry out retrospective checks on an existing employee’s right to work. If an employee fails to apply for pre- settled or settled status, or fails to obtain this status, then it is their responsibility to disclose this fact to their employer.
However, to ensure the stability of your workforce, you can choose to carry out retrospective right to work checks. However, if you do carry out checks, you must ensure that this is in accordance with the Home Office’s guidance on avoiding discrimination.
I employed an EEA citizen between 1st January 2021 and 30th June 2021 – what checks should I have carried out?
Until 30th June 2021, EU, EEA and Swiss citizens were able to continue using their EEA and Swiss passports or national identity cards as evidence of their right to work in the UK. Employees were not required to carry out any further checks during this grace period.
EU citizens who arrived in the UK after 1 January 2021 will need to have obtained a work visa, as they will not be eligible to apply for pre-settled or settled status. However, until 30th June 2021, employers were not expected to differentiate between potential employees who arrived before 1 January 2021, and those who arrived after.
Will I get in trouble if a current EEA citizen employee is found to be working illegally?
So long as:
- initial right to work checks were carried out when the employee commenced employment in accordance with current guidance at that time; and
- you are not aware that the employee was working illegally,
then you will have a statutory excuse and will not be liable for a fine or penalty if an EEA Citizen employee is found to be working illegally.
Should I suspend or dismiss and EEA citizen who cannot provide proof of their right to work when carrying out a retrospective check?
Employees should not be automatically dismissed if they cannot show that they have the right to work in the UK – there is a difference between not having the right to work, and not being able to demonstrate the right to work. Dismissal without due process carries the risk of a claim for unfair dismissal if the employee has over two years’ service and potential race discrimination if the employee feels they are being treated unfavourably or are being harassed. Whilst illegality is a fair reason for dismissal, you will not be able to rely upon this if the employee does in fact have the right to work. We would recommend carrying out a thorough investigation and providing the employee with reasonable time and support to obtain the necessary evidence.
There is no need to suspend the employee– they would continue to be employed by you during the period of their suspension, and so this would not mitigate any risk in respect of illegal employment.
Can I recruit candidates from the European Economic Area after Brexit?
From 1 January 2021, if you would like to recruit workers without an existing right to work, you will need to apply for a sponsor license from the Home Office. Any worker you want to hire from outside the UK will need to show:
- The job offer is at the required skill level – RQF 3 or above (A Level and equivalent)
- They speak English to the required standard
In addition to this, the job offer must meet the applicable minimum salary threshold. This is the higher of either £25,600, or the ‘going rate’ for the occupation.
However, applicants will be able to trade characteristics, such as their qualifications and type of job role, against a lower salary. If the job offer is less than the minimum salary requirement, but no less than £20,480, an applicant may still be eligible if they have:
- A job offer in a specific shortage occupation
- A PhD relevant to the job
- A PhD in a STEM subject relevant to the job.
There are also several exemptions to these criteria, for example, for those in healthcare roles and new graduates. Further information can be found on the Government website; here and here.
If you need any further assistance checking candidates right to work from 1 July 2021, the Government have also provided detailed guidance for employers.
Have the right to work checks changed?
As previously stated, you must continue to carry out a right to work check for every individual you employ. From 1st July 2021, the document checks you must carry out on people before employing them in order to prevent illegal working have been updated.
Wirehouse clients are recommended to use our updated right to work checklist to ensure you carry out the correct documentation checks. You can find our updated right to work checklist and a range of other stationary you may find useful by logging into our client portal Guardian.
If you are not a Wirehouse client and need further advice and guidance surrounding right to work checks and any other workplace HR issues, get in touch with our Employment Law and HR team today.