Employers’ Brexit checklist

December 21, 2020

Are you ready for the end of the UK’s transition period?

Free movement for European nationals ends at 11pm on 31st December 2020.

For the purposes of this article, I will use the term ‘EU nationals’ to include EEA and Swiss nationals.

What do employers need to know?

There will be different immigration rules, dependent on when the individual arrived in the UK.

Those who entered the UK before end of free movement need to apply under the EU Settlement Scheme, which allows them to continue to live and work in the UK. Applications are made online, and the deadline is 30th June 2021.

You need to be aware that even people who have a permanent residence document must apply under the settlement scheme. Irish nationals are exempt, as are those with indefinite leave to remain.

If an EU national fails to apply before the deadline, they lose the right to live and work in the UK after the 30th June 2021, and might be found to be working illegally.

There is nothing to state that employers need to retrospectively check on the status of these workers, and insisting on evidence of status could be found to be discriminatory or a breach of GDPR. However, this needs to be balanced against the risk of inadvertently employing an illegal worker. A compromise would be to request that such employees voluntarily provide evidence of their settled/ pre-settled status, or of their application.

Settled and Pre-settled status

Individuals who have lived in the UK for five or more years should be eligible for settled status. There are rules about what counts as ‘continuous residence’ – spending more than six months out of the UK in any twelve-month period breaks the continuity.

Those who don’t qualify for settled status can be granted pre-settled status. This is granted for five years, and at the moment it appears that this cannot be extended. It will be essential for those with pre-settled status to preserve their continuous residence.

Mind the gap…

EU nationals entering the UK after 11pm on 31st December 2020 will be treated in the same way as anyone else for immigration purposes and will need a visa to able to work legally. BUT employers have been told to continue to conduct their Right to Work in the UK checks as they currently do for EU nationals, up until 30th June 2021. Government guidance expressly states that employers must not require evidence of settled or pre-settled status during the recruitment process:

“You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.”

This does place employers in the extraordinary position of being instructed to conduct right to work checks, based on documentation which does not actually confirm that right!

Again, you could ask for voluntary disclosure of when they arrived in the UK and/ or their settled/ pre-settled status. Insisting on this could be deemed discriminatory.

Skilled Worker Route

Employers wishing to take on EU nationals in the future will have to use the skilled worker sponsorship route, just as with employees from any other country. The system has been reformed to make it easier and a bit less expensive to employers, but it is still likely to involve considerable time and cost.

There will be a new points-based system, with points awarded for skill level, English language ability and salary. There is an overall minimum salary, but also guides for specific jobs, and it is the higher one which applies. Points are deducted for salaries below this minimum, while extra points are awarded for roles which are on the shortage occupation list.

Sectors which rely on low-paid, unskilled workers from the EU are unlikely to be able to use this route.

Checklist for employers:

  • Review who, if anyone, needs to apply for settled/ pre-settled status.
  • Encourage them to apply, and remind them that their family members also need to acquire settled/ pre-settled status.
  • Schedule right to work checks.
  • Record any employees with pre-settled status and diarise further checks when necessary.
  • If you think you might need to sponsor employees from the EU, start looking now as we do not know what the lead-in time will be to become licensed.
  • It is a good time to review your offer letters and employment contracts to ensure they state that the employment is conditional on candidates having (and providing satisfactory evidence of) the right to work in the UK.

Please note – the information in this article is for general guidance only, and is not a substitute for specific legal or other advice in any given situation.