Post Termination Issues: What do employers need to consider?
Chris Dobbs looks at post termination issues, obligations and restrictions.
Changes to recruitment Post-Brexit
As the question of what changes to employment law can be expected after Brexit seems to be increasingly insignificant, one major area of employment practice is impacted by the UK leaving the EU: recruitment.
The recruitment of EU nationals in post-Brexit Britain is particularly affected, of course, by the end of the free movement of people between the EU and the UK.
The immigration rules and automatic right to work will no longer apply and staff from EU member states will be subject to the same rules as recruits from the rest of the world.
The following comments are written from an employment law perspective. Detailed guidance on a particular issue in relation to immigration rules should be directed to a specialist advisor.
Can I employ EU workers after Brexit?
Yes, absolutely, but EU nationals will no longer have the automatic right to check by virtue of the freedom of movement. If staff are being recruited from the EU and are arriving in the UK after the end of the transition period (1 January 2021) they are subject to the same immigration rules as everyone else.
Employers are under a legal duty with civil and criminal penalties for employing someone without the right to work in the UK.
What is the EU settlement scheme?
This is the process by which EU nationals resident in the UK prior to 31 December 2020 can apply for either ‘pre-settled’ and/or ultimately ‘settled’ status in the UK. It is an immigration scheme, not an employment one, although obtaining either status does give an individual the right to work in the UK.
‘Pre-settled status’ is an interim position as full settled status requires 5 years’ continuous residence. The pre-settled status allows individuals to remain living and working in the UK for up to 5 years, thereby allowing them to reach the threshold to apply for full settled status at a later date.
When is the EU settlement scheme deadline?
The scheme has been open since March 2019 and closes on 30 June 2021 which means EU nationals currently resident in the UK who intend to live and work here after the 30 June 2021 should be applying.
Right to work guidance for employers
Employers have a legal duty to ensure that staff are entitled to work in the UK.
There is a civil penalty of £20,000 for engaging someone without the right to work and an immigration official can impose this fine per illegal worker. The ‘statutory excuse’ to this penalty would be available if the employer has carried out appropriate right to work checks.
Separately there is a criminal offence committed by engaging a worker without the right to work if the employer has ‘reasonable to cause to believe’ they do not have that right.
An appropriate check for right to work will serve as a defence to the civil claim. Since January 2019, employers have been able to use the Home Office’s online system to check right to work.
Changes Between Now and 30th June
Government guidance is that employers should continue with current right to work checks until 30th June 2021 in the same way as they have been doing.
A natural concern is that anyone who arrived in the UK after 1 January 2021 does not have the automatic right to work or the ability to apply for settled status. Recent updated guidance indicates that an EU, EEA or Swiss citizen showing a valid passport or national ID card will be sufficient for the civil statutory defence.
In order to be found criminally liable, it is going to have to be shown that the employer had reasonable cause to believe the individual had arrived in the UK after 1 January and that seems unlikely.
How does Brexit affect current EU workers in the UK?
Unless current workers have indefinite leave to remain (ILR), they will need to have obtained either pre-settled or settled status by 30th June 2021 in order to retain their right to work.
The onus is on the individual to make the application but employers should remember they are liable for the right to work checks after 30th June.
The guidance says that employers should not ‘check’ whether an individual has applied; this is to help prevent any discrimination against those who are eligible but have not yet applied.
My colleague Paul Burton writes about more changes to employment law post-brexit in his latest article, which you can read here.
An Employment Solicitor's View
Chris Dobbs, Employment Solicitor:
"If EU citizens have not met the requirements by 30 June, it will be illegal to continue to employ them. It is in everyone’s interests for employers and workers to cooperate over the coming months to ensure as smooth a transition in June as possible."
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