A law firm offers a stark warning to employers regarding questioning an employee’s EU settlement status.
As it currently stands, if an employee is an EU, EEA or Swiss citizen, they are eligible to apply for the EU Settlement Scheme (EUSS) which allows workers and their families to continue living in the UK after 30th June 2021 – when the scheme ends.
However, the city law firm, Bates Wells, offers a firm reminder to employers regarding what they cannot ask.
According to guidance from the Home Office, employers cannot yet ask employees about their status under the EUSS, as EU nationals still have until June 30th to apply.
If an employer does ask, the law firm warns, this could lead to claims of discrimination on the basis of country of origin.
However, Bates Wells found that, in order to circumvent discrimination claims, this may lead to employers choosing to avoid hiring EU nationals as they are not privy to the information which tells them whether the employee is entitled to remain in the UK.
EU nationals may present their European passport or national identity card as proof of their eligibility to work in the UK up until June 30th. From July 1st they will need to be able to prove that they have been granted settled status or that their application is being processed.
This means that after, 1st July, it is expected that UK employers will be obliged to check the status of EU employees and may face prosecution if they do not. If an employee is found to have not applied for status under the EUSS or does not have proof of their right to work in the UK, their employment must be terminated.
Bates Wells states that employers who hire EU workers could incur significant recruitment costs and disruption if they are then forced to let them go just months later if it transpires that they do not have settled status.
Victoria Cook, Senior Associate in Bates Wells’ Employment practice says:
Employers will need to tread extremely carefully. Probing questions during recruitment could leave them vulnerable to claims that they have discriminated against candidates on the basis of their nationality.
Ironically, this could inadvertently lead to employers choosing to ‘filter out’ candidates from EU countries rather than run the risk of a claim.
Chetal Patel, Partner in Bates Wells’ Immigration practice adds:
Right to Work obligations force businesses to operate as de facto immigration officers. Brexit has only added to the administrative burden.
Hiring and training employees only to be forced to fire them in a matter of mere months would incur significant costs, which businesses can ill afford in these difficult times.
*Bates Wells, founded in 1970, is a professional services firm that works for a wide range of businesses, social enterprises, charities, institutions, public bodies and high-profile individuals, across a variety of sectors.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
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