Citizens of EU member states, Switzerland and the European Economic Area (EEA) – which includes EU countries plus Iceland, Liechtenstein and Norway – who started living in the UK by 31 December 2020 have until 30 June 2021 to apply for the right to continue living and working in the UK through the EU Settlement Scheme (EUSS).
During this grace period, employers are not required to carry out retrospective checks to determine whether European colleagues have the right to work in the UK on an ongoing basis.
However, businesses still need to exercise caution – both to avoid potentially significant civil penalties if found to be knowingly employing an individual who does not have the right to work, and to avoid discriminating against European employees.
There are some practical steps firms can take to stay on the right side of the law.
For existing staff that began working for the business in the UK before 31 December 2020, employers should take a staged approach to encourage staff to secure the right to work through the EUSS.
Firms should first send out company-wide communications highlighting that free movement between the UK and Europe ended from 11pm on the 31 December 2020, before sharing information on the EUSS and how to apply.
For employees who have a passport or national ID card from an EEA country – excluding Irish nationals – businesses should invite, but not compel, them to provide evidence of the right to work under the EUSS, the immigration rules or as an exempt person.
Following the end of the application window for the EUSS on the 30 June 2021, they should then request proof of employees having the right to work, or of having made an application under the EUSS before the deadline.
If an employee cannot show proof of their right to work following the end of the EUSS application window, employers should seek specific legal advice to determine the best course of action. Automatically dismissing or suspending employees for whom the right to work cannot be determined could, for example, give rise to a claim of discrimination or unfair dismissal.
Employers should also be aware there could be additional risk when it comes to EU, EEA and Swiss citizens who first arrived in the UK after 31 December 2020. They may not be eligible to apply for the EUSS, or have the right to work during the EUSS application window until 30 June 2021.
Here, businesses should again seek legal advice to ensure they understand their obligations with regard to right to work checks, and to reduce the risk of discrimination claims.
Navigating the post-Brexit landscape will require adaptation and change in many parts of businesses – employment is no different. When it comes to employees’ right to work, caution and understanding will be key.
Carolyn Bowie is a solicitor at national law firm Weightmans in Glasgow