Although Brexit may have been delayed for the short term, we are receiving an increasing number of questions from our clients regarding the steps they need to take when checking EU Settlement applications of employees who are EU Nationals, in order to comply with right to work legislation.
At present, EU Nationals have the right to work in the UK. However, once the UK leaves the EU, Nationals who do not have indefinite leave to remain will need to demonstrate that they have settled status under the EU Settlement scheme, if they wish to remain in the UK beyond December 2020 (or in the event we leave with a deal June 2021).
Applications to the EU Settlement scheme are now open, however the latest Home Office toolkit confirms that ‘there is no requirement for the individual to inform you, as an employer, that they have applied or the outcome of their application’.
Understandably, this has led to concerns regarding what steps employers should be taking to ensure they comply with their right to work obligations. So, we’ve put together four pragmatic steps to ensure that as employers, you comply with your right to work obligations, whilst ensuring you are not discriminating against EU Nationals:
1. Signpost the scheme
Make your employees who are EU Nationals aware of the scheme, and make sure they know of the need to apply for settled status if they wish to continue living and working in the UK post the end of the transitional period;
2. Retain copies
If any employees voluntarily provide you with evidence of their settled status retain a copy of this evidence on their personal file;
3. Consider an Audit
If you are not confident that you could demonstrate that the entirety of your workforce has the right to work lawfully in the UK, regardless of nationality, you could ask all employees to produce right to work documentation if feasible;
4. Ask for evidence once provisions come to an end
Alternatively, once the transitional provisions come to an end and EU Nationals require settled status, you could ask for evidence at that point in order to ensure you are complying with your right to work obligations.
Given the change in immigration status of EU Nationals, we believe this would not be discriminatory or at the very least would be capable of objective justification.
Remember, if you are a sponsor of migrant workers, as a sponsor licence holder you are fully responsible for ensuring the right to work of all your employees to protect your licence and meet your obligations as a sponsor. This would further justify asking for proof of settled status post the end of the transition period.
We hope these practical steps have proved useful and pragmatic during a period of uncertainty. Do let us know if you have any more questions or queries which you’d like us to cover.