With everything that has happened over the last 18 months, Britain leaving the EU has slipped down the news feed somewhat. But did you know that an important deadline is looming and one that might affect you if you have staff from EU countries?
The current employment rules around staff from EU (or referred to here as EEA) countries end on 30th June which is also the deadline for EU citizens who are resident in the UK to apply for settled status. After 30th June it will be much more difficult to employ EU citizens who don’t have either pre-settled or settled status as they will need to meet the same criteria as those coming from all other countries. In order to employ them you would need to have a Home Office Sponsor licence.
If you have any staff who are EU citizens it would be worth reminding them of the deadline for applying for settled status but you don’t have the right to ask to check it until after 30th June. If they don’t apply for settled or pre-settled status they could lose their right to live and work in the UK after 30th June.
There is no mandatory requirement for retrospective checks on EEA nationals who were employed on or before 30th June 2021. However, you are only protected against penalty if you can provide robust evidence that you carried out an initial right to work check in line with correct guidance at the time of employment. Therefore, we recommend as good practice, and in order to ensure you meet legal obligations, that you audit all your existing staff team (to prevent discrimination) and check their right to work after the 30th June.
There is a legal obligation on employers to check the right to work in the UK for all new employees. To prevent discrimination you should do this for anyone who you are employing, even if it seems obvious that they are British or because they may be known to you. For those who are British Citizens this is as simple as asking to see their passport or if they don’t have a valid one, their birth/adoption certificate in conjunction with an official document showing their National Insurance number. For the full checklist of suitable documents see here but please note that we expect this list to be updated after 30th June: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774286/Right_to_Work_Checklist.pdf
You must make a copy of these documents in a format that cannot be altered (e.g. a photocopy) and you must keep this for the duration of their employment and for two years afterwards. You should note on the document the date that it was checked. You may already have some of these documents as part of your DBS checking procedure.
If you aren’t able to use actual documents, you can also check an employee’s right to work digitally here: https://www.gov.uk/employee-immigration-employment-status
If you have undertaken these checks and followed the Code of Practice (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/969123/An_employer_s_guide_to_right_to_work_checks.pdf) then you have what is known as a ‘statutory excuse’ if it’s later found that the employee had been working illegally. This means that you wouldn’t be prosecuted. If you haven’t done them, or aren’t able to prove that you did, you may be liable for fines of up to £20,000 per employee.
As this legislation requires staff to hand over a lot of personal information they need to be confident that you will deal with it within data protection legislation and store it safely and securely, so it’s very important that your data protection policy and practices are in place and adhered to.
It is expected that the government will issue further guidance closer to 1st July so keep an eye out for this – we will also flag this via Facebook.
