We are the last few weeks away from the end of the transition period and leaving freedom of movement behind. Although employers will be busy getting to grips with the post-Brexit immigration system, what we are seeing is that they are very concerned about what changes they need to make to their right to work check procedures, and when.

Text:

We know all UK employers have a responsibility to ensure that their employees have the right to work in the UK before they start work and throughout their employment. Carrying out a right to work check properly will shield an employer from liability for a civil penalty if they are found to have inadvertently employed somebody who does not have the right to work in the UK. The Home Office has confirmed that right to work check procedures will not change until after 30 June 2021, when the post-transition ‘grace period’ for applying under the EU Settlement Scheme ends. There will be no requirement for retrospective checks on EEA nationals or their family members who start work before this date. However, there is a risk that employers will be prosecuted if they know, or have reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant right to work check. This could happen where an EEA national enters the UK for the first time as a visitor after the end of the transition period, or where an existing staff member fails to apply under the EU Settlement Scheme on time.

In our recent webinar on 1 December 2020, we discussed:

• Background and current practice of right to work checks including the move to online checks and changes and concessions due to COVID-19

• The situation with EEA nationals and our recommendations to avoid pitfalls

• Dealing with right to work checks sensitively and employment law issues

• Helpful tips to avoid pitfalls with right to work checks and illegal working

We have also addressed the wide ranging set of questions from attendees, which you can view below or download a pdf version. You can also view the webinar in full

 

In these Q&As, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. It excludes Irish nationals, who are already considered ‘settled’ in the UK. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS), and, unlike other EEA nationals and their family members, will continue to be able to rely on their Irish passport for the purposes of right to work checks after 30 June 2021.

We have a Bulgarian national on our payroll who has been furloughed since March. Due to the COVID-19 pandemic and being furloughed she went to Bulgaria to be with her family. She will continue to work for us next year. If she is in Bulgaria on 1 Jan 2021, will she need a visa to continue working for us?

Unfortunately the answer to this question is not straight-forward. If the employee has been outside the UK for more than six months in a 12 month period (which appears may be the case if she left the UK in March 2020 and has not returned), then the continuity of her residence will normally have been broken. There are however exceptions for:

• A single period of absence of up to one year, provided this is for an important reason. Important reasons are not defined exhaustively, but accepted examples include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.

• Compulsory military training of any length.

The Immigration Minister has recently indicated in a letter to the 3million campaign group that serious illness and being quarantined to protect public health would be accepted as an ‘important reason’. He also stated that guidance will be published shortly for EU Settlement Scheme applicants who have been affected by illness or travel restrictions due to COVID-19. The guidance has not yet been published.

Based on the Immigration Rules and guidance that has been published to-date for individuals with limited leave in other immigration categories and for naturalisation, there is a considerable risk that your employee’s circumstances may not fall within the guidance if she travelled to and has remained in Bulgaria by choice. Irrespective of whether your employee has already obtained pre-settled status under the EU Settlement Scheme (EUSS), the safest course of action would be for her to return to the UK by 31 December 2020 to start a fresh period of residence and to apply (or re-apply) for pre-settled status by 30 June 2021. This would avoid the need for an application to be made under the new immigration system, or for your employee to be ineligible for settled status due to having broken the continuity of her residence. 

We are finding that there is currently a delay on BPRs for new arrivals into the country, meaning that their Entry Clearance visa may expire before we are able to check the person’s BRP. What should we do in this situation, should we use the Employer Checking Service (ECS)?

Yes, you should obtain the employee’s authority to request a verification notice from the ECS and make the ECS request before the expiry of the person’s short-term entry clearance vignette. This will provide you with a statutory excuse against liability for a civil penalty for six months from the date you receive a positive verification notice from the ECS.

I’d like to know whether it is mandatory to take a screenshot of the video call and the person holding up their documents or would is this an optional good to have evidence on top of the check and the printed name with the adjusted sentence, etc?

This is not mandatory, it is a suggestion for good practice.

Does an employer have to do a right to work check on day one if the hire commences from aboard as they are not permitted to travel due to COVID-19? In other words, does the RTW check need to be done only when they are on UK soil?

The UK right to work check should be done before the person commences any work for the employer while they are physically in the UK. In the meantime, if the person starts working for a UK employer remotely from another country, they must have the right to work in the country they are physically located. There may be tax and other considerations if there is remote working abroad, which are discussed in this article.

We are maintaining dialogue, signposting employees to resources ie to apply for settled status etc. Would you recommend a company communication on the immigration changes to include signposting? We have an intranet where we can post things like this but I’m not sure if we should do a wider one.

We would suggest using multiple channels to raise awareness of the changes. You could post information on your intranet, put information on company screensavers and also send out a company communication via email. We would also suggest that awareness is raised with your UK staff, and your staff in any offices abroad, in particular in the EEA or Switzerland.

The wider the communication is, the more your staff will have an opportunity to take action. There are some people who have left the UK within the last five years who may not know they are eligible to apply for settled status, and who could currently be living anywhere in the world. There are also people who, in addition to having rights under free movement law, also have UK immigration permission and are not aware that they can apply under the EUSS.

A recent report by the Migration Observatory at the University of Oxford cites lack of awareness as being a key concern for the ability of EEA/Swiss nationals and their family members to secure their UK residence rights. Any efforts that employers can make to address this are likely to make the affected employees feel valued and will reduce the risk that they may lose their rights.

We would advise that you seek legal advice in this scenario. There are some employment law risks in automatically dismissing and/or suspending an employee who you suspect may not have the right to work in the UK. Remember that there is a difference between actually not having the right to work in the UK and not being able to prove the right to work in the UK. In many cases they are one and the same, but not always.

• There is the risk of an unfair dismissal claim. Employees with more than two years’ service have the right not to be unfairly dismissed. This means that you must identify a potentially fair reason for dismissal, as well as follow a fair process. “Illegality” is a potentially fair reason for dismissal, which would apply if somebody definitely does not have the right to work. However, you must still follow a fair process. Further, if they did happen to have the right to work all along, you will not be able to rely on illegality as the reason for dismissal (although you may be able to rely on “some other substantial reason” if you genuinely believe they do not have the right to work). Key to the fairness of the dismissal will be the process that you follow – you must conduct an investigation into the matter and come to your own, informed conclusion, including by speaking to the employee and using the Employer Checking Service. You must also ensure that the reason for dismissal stated in the termination letter is very carefully articulated. If you dismiss unfairly (for example, by failing to do a full and proper investigation before arriving at your conclusion), the employee may potentially bring a successful claim for unfair dismissal. 

• There is also the risk of a wrongful dismissal claim – i.e. a claim for notice pay. If you dismiss without notice on the basis that the employee did not have the right to work, but they did have the right to work all along, the employee could bring a claim for their notice pay.  [It is also arguable that the employee is entitled to notice pay anyway unless they have tried to conceal the fact they do not have proof of right to work].

• There is also the risk of a race discrimination claim. The employee could claim that you are treating them less favourably than you would (for example) a British employee, or they could complain that the way that you handle the situation amounts to harassment.  It is important to make sure you treat all employees who need to show proof of right to work in the same way.

Suspension is unlikely to be of much assistance. The employee would remain employed while suspended, so the risk of continuing to employ an illegal worker would not be avoided by simply suspending them. Suspension is generally only appropriate where there is a reason why the employee should not be in the workplace (e.g. due to serious misconduct). Any suspension would also need to be paid, unless the contract allows for suspension without pay.

Yes, however we would suggest a staged approach. See question 17 for further details.

We have nationality/citizenship data in our HRIS system.  Does that enable us to send out targeted communications?

We would suggest not relying on nationality/citizenship data in isolation as this can be incomplete or otherwise prone to error.

If we recruit a new starter (EEA/Swiss citizen) after 1 January 2021 and they haven’t been living in the UK by 31 December 2020, can you clarify whether we can still rely on their EEA passport until the end of the grace period or do the new January immigration rules apply?

You can rely on their EEA passport for the purpose of a right to work check, however an EEA or Swiss national who enters the UK for the first time after 11 pm on 31 December 2020 may not in fact have a right to work unless one of the following applies:

• They have an EUSS family permit

• They have the right to work granted under the UK Immigration Rules

• They are exempt from immigration control, e.g. as the family member of a diplomat

The Government’s current position on right to work checks carries the risk that some people will be employed unlawfully. Although further guidance is expected to be forthcoming, no specific date has been confirmed for when this will be released.

Do we need to do a retrospective RTW check on all our EEA national employees after 1 July 2021? Or just those who join between 1 Jan and 30 June? 

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

When hiring an EEA national from 1 Jan 2021 can/should we ask them to show they entered the UK by 31 Dec 2020? 

Unfortunately this will not provide an accurate indication of the person’s right to work. For examples of where an EEA or Swiss national may have a right to work despite not having entered the UK by 11 pm on 31 December 2020, see the response to question 9.

Can we engage freelancers based in the EU from Jan onwards? 

See response to question 4.

Re dismissal – In 2018/2019 The Home Office refused ILR applications on the basis of incorrect tax returns. Many months later, the Home Office admitted that they had made a mistake and these applications shouldn’t have been refused. Where does an employer stand in this situation?

This would depend on the facts of the case in question. In the absence of more detail we cannot give a definitive answer. We recommend that you seek legal advice in such cases.
See the response to question 6 for some of the employment law risks in dismissing employees on the basis that an employee cannot prove that they have the right to work. It may be possible to defend an unfair dismissal claim in the event of a genuine but mistaken belief that an employee did not have the right to work in the UK. However, that will depend on the facts of the case in question. In many cases, the quality of the employer’s investigation into the employee’s immigration status will be critical in determining the fairness of a decision to dismiss. The Home Office does, unfortunately, make mistakes. But an employer seeking to justify its decision to dismiss will want to show that it conducted its own investigation into the matter and reached a fully informed conclusion.

This is a thorny and complex area. We would strongly advise that you seek tailored legal advice, because the answer will depend on how you phrase the question and what you do with the information provided.

It is possible – in some circumstances – to ask candidates if they have the right to work in the UK during the recruitment process. However, there is a risk of race discrimination. If the question is benign, sensitively phrased, asked of all candidates and appropriately processed, then the risk is more limited. But, employers have been found to be liable for race discrimination for using a negative answer to ‘sift’ candidates, or where a candidate’s inability to prove they have the right to work in the UK formed part of the decision to reject their application. An employment tribunal will be concerned with whether candidates are rejected on merit, or whether they were rejected because of their immigration status. 

Employment case law in this area suggests that not currently holding a sponsor licence is not a good enough reason in and of itself to refuse to employ a candidate without the right to work in the UK. See the answer to question 14 above for some of the risks involved in asking about candidates’ right to work.

Case law states that a decision to reject an application on the basis that the candidate does not have the right to work may well be discriminatory, and this means that a decision to reject on the basis that the employer does not currently hold a sponsor licence may also be discriminatory. The safest approach is to do a full merits assessment of the candidates, and only at the end of the process to decide whether or not you wish to try to sponsor a candidate. The key is to select (and be seen to select) employees only based on their suitability for the role on offer. The approach of using nationality (or right to work in the UK) as a determinative factor does open the door to a race discrimination claim. Note that a failure to observe the Home Office’s code of practice may be taken into account by a tribunal in deciding whether there has been discrimination.

Please do contact us for advice if you are considering adopting such policies or practices. 

See the answers to questions 14 and 15 above. A suggestion that employees will automatically be rejected for sponsorship-related reasons may be found to be discriminatory. Of course, some roles may not be eligible for sponsorship under the UK’s points-based immigration system; but pre-emptively advertising this fact in the job advert may create an unnecessary degree of legal risk. The approach suggested by the employment case law is that you should make your decision based on merit, and only at the end of the process should you consider whether sponsorship is possible.

If we are not required to do retrospective right to work checks for EEA citizens to verify whether they have Settled Status or not, from 1 July 2021, how do we know if an employee has the right to work?

Although you are not required to do a retrospective right to work check, we would suggest that you follow a staged approach:

• Before the end of the transition period: Send company-wide communications flagging that free movement is coming to an end from 11 pm on 31 December 2020, and raising awareness of the EU Settlement Scheme, including the deadline to apply. Follow-up firm-wide communications could also be sent around the end of March 2021.

Then, for employees who have relied on an EEA/Swiss passport or national ID card (other than Irish nationals), and family members whose right to work document has been issued based on EU law residence rights:  

• Between the end of April 2021 and 30 June 2021: Invite (but do not require) affected employees to provide proof of their right to work under the EU Settlement Scheme, otherwise under the Immigration Rules, or as an exempt person, eg a frontier worker.

• On or immediately after 1 July 2021, and subject to further guidance being issued by the Home Office: Request proof of right to work as above, or of having made an application under the EU Settlement Scheme before 1 July 2021.
  

See the answers to questions 14 to 16 above. A decision to reject candidates outright on the basis of immigration status may well be discriminatory. However, please do contact us if you would like a more detailed discussion about how to navigate these issues. 

If you have any queries on the above or any other matter, please contact a member of the immigration team or employment team.

 

Related Item(s): Immigration & Global Mobility, Employment, BREXIT, Immigration

Author(s)/Speaker(s): Andrew Osborne, Li Xiang, Tom McEvoy,