Right to work updates

It is a well-known fact that all employers must ensure their employees have the right to work in the UK. UK employers have a duty to prevent illegal working by carrying out the prescribed document checks before an employee starts work, to ensure they are actually lawfully allowed to work. Carrying out compliant right to work (“RTW”) checks protects employers from substantial civil penalties and up to 5 years’ imprisonment and/or an unlimited fine.

While this is not news to HR professionals, what is concerning some employers is how they continue to carry out compliant RTW checks during the ‘grace period’ (to 30 June 2021). During this period, individuals who were lawfully resident in the UK by virtue of EU free movement law who do not yet have status under the EU Settlement Scheme continue to have their right of residence protected, albeit now under domestic law.

The Home Office has recently issued further guidance for employers on right to work checks for EEA and Swiss nationals during this period, confirming that the procedures for RTW checks will not change before 30 June 2021 and retrospective checks on EEA nationals (or their family members) who start work before this date will not be required.

However, if an employer knows or has reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant RTW check, there remains a risk that they will be prosecuted. So, it is vital that you exercise caution.

To assist in staying on the right side of the law, we have considered the issues encountered by our clients and provide answers to some common questions.

Q. Are retrospective RTW checks required on all EEA national employees to verify whether they have Settled Status or not from 1 July 2021?

A. A retrospective right to work check is not required for any employee whose work commences on or before 30 June 2021.

Q. If we are not required to carry out retrospective RTW checks for EEA nationals, how do we know if they do actually have the right to work?

A. EEA and Swiss nationals who become resident in the UK after 1 January 2021 may not have permission to work. As it stands, an employer is not required to carry out additional checks to confirm the right to work, provided that employees start work before 30 June 2021.

In the event that someone does not have the right to work, employers will have a defence against a civil penalty if they carried out the prescribed RTW checks before the employment commenced.

Q. If an existing employee who is an EEA national (or their family member) cannot show proof of their right to work on 1 July 2021, can I dismiss or suspend them without pay?

A. We would recommend that you seek specific legal advice, should this situation arise. There is a difference between having no right to work in the UK and being unable to prove a right to work in the UK. Although similar, these are not the same. There are risks in automatically dismissing or suspending employees when you do not have evidence of their right to work, for example it may give rise to a claim for unfair dismissal or discrimination.

Q. As part of the pre-employment checking process, can we ask an EEA national when they came to the UK?

A. The Guidance is clear that employers “are not expected to differentiate between EEA nationals who arrived before the end of the transition period (31 December 2020) and those arriving after in the grace period from 1 January to 30 June 2021. '"

You should therefore avoid asking individuals when they entered the UK, as it may place you at risk of a discrimination claim.

The Home Office have stated that an EEA national can provide a passport or ID card as their right to work document and this should be accepted as a valid right to work document until 30 June 2021.

If this document is checked correctly and retained on file, then you will have a statutory defence regardless of whether the individual came into the country before or after 31 December 2020.

Q. Can we ask on an application form if an applicant has the right to work in the UK?

A. We would recommend that you do not ask whether an applicant has a right to work at the application stage. This requirement has a disproportionate impact on foreign nationals and has the potential to be indirect discrimination.

It is advisable to leave evidence of right to work questions until the end of the recruitment process. This point is addressed in section 16.67 of the Statutory Code of Practice accompanying the Equality Act 2010: “Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone, and is not influenced by other factors … Employers can, in some circumstances, apply for work permits and should not exclude potentially suitable candidates from the selection process.”

An applicant may not have the right to work at the application stage but may have received the correct documentation by the time they commence employment. 

An alternative would be to inform candidates that they will be required to provide evidence that they are legally allowed to work in the UK prior to commencing employment.

Q. If we recruit an EEA national after 1 January 2021 and they arrived in the UK after 31 December 2020, can we rely on their EEA passport until the end of the grace period or do the new immigration rules apply?

A. You can rely on an EEA or Swiss passport or national identity card as sufficient evidence of right to work.

Q. If we do not have a have a sponsor licence, can we refuse candidates who do not have a right to work?

A. Not currently holding a sponsor licence is unlikely to be a good enough reason to refuse to employ a foreign candidate. It may be discriminatory to reject an application on the basis that the candidate does not have the right to work. It is advisable to do a full merits assessment of all the candidates, and make a decision at the end of the process on whether you wish to try to sponsor a candidate. Using nationality (or right to work in the UK) as an influential factor does come with the risk of a race discrimination claim.

Q. On a job advert can we state that we do not have a sponsor licence or that the role is not eligible for sponsorship?

A. We would advise against stating that you do not have a sponsor licence in job adverts as it may give the impression that you are discouraging non-EEA (and EEA from 1 January 2021) applicants from applying.

Similarly, suggesting that candidates will automatically be rejected for sponsorship-related reasons may be found to be discriminatory.

A potential candidate could argue that securing a sponsor licence is not an unreasonable burden when balanced against their right not to suffer discrimination due to their nationality and that the organisation should be prepared to secure a Sponsor Licence. Similar to the above response, this could potentially expose you to claims of indirect race discrimination.