Right to Work Checks and EU Workers
Welcome to the second email instalment of our mini-series on the humble Right to Work Check!
Following our departure from the EU, the rules have changed when it comes to checking the right to work status of EU workers who previously enjoyed the benefits of free movement. The Right to Work obligation in respect of EU workers is not always straightforward and carries fairly significant legal risk if it is not executed correctly. Hopefully, this article will give you some food for thought if nothing else but as always, if you have any questions about the subject please do not hesitate to contact us.
What is the current position?
The rules on conducting Right to Work checks on EU, EEA and Swiss national workers changed this Summer on 1 July 2021, following updated Home Office guidance. With the European Union Settlement Scheme (EUSS) and the Covid-19 pandemic adding extra complication and matters for consideration into the mix, it is now more important the ever before that employers are aware of their obligations when it comes to checking the employment status of EU workers.
Up until 30 June 2021, EU workers could continue to use a valid passport or National Identity Card to prove their eligibility to work. However, for workers employed after 1 July 2021 there is now an obligation on employers to conduct full document checks. This obligation essentially places an employer under a requirement to see either an individual’s status under the EU Settlement Scheme or proof of an appropriate work-based visa under the points-based system.
In essence this all means that employers can rely on compliant checks made on or before 30 June 2021 where EEA nationals presented their valid ID or passport with no specific requirement for any retrospective check to be carried out. For anyone employed after this date, a full right to work checking process needs to be carried out by an employer at the recruitment and/or onboarding stage to ascertain an employee’s right to work in the UK.
Top-tip! Where a right to work check confirms that there is a time limit on the EU applicant’s right to work in the UK, a follow-up check should be carried out prior to the expiry date to ensure that there is a continuous right to work.
European Union Settlement Scheme (EUSS)
When it comes to those foreign workers who are still awaiting a decision on an EUSS application, they will continue to have their UK residence and working rights protected while their application is pending.
It is also acceptable for EUSS applicants to rely on a ‘Certificate of Application’ issued on or after 1 July 1 2021, along with a Positive Verification Notice through the Employer Checking Service, as proof of right to work
What if I have an EU worker who does not have settled status?
The EUSS, which granted successful applicants either ‘settled’ or ‘pre-settled’ status closed on 30 June 2021 to new applicants, however, there was a grace period added for those who missed the deadline to apply.
If after 30 June 2021 it is identified that an EU worker has not applied for EU settled status and do not therefore have a right to work in the UK, the employer would not have to terminate the worker’s employment provided:
- they were employed by the organisation prior to 30 June 2021; and
- the employer advises the worker to make their settled status application within the grace period; and
- the employer receives a positive verification notice for the employee via the Employment Checking Service
If the EU worker is then successful in their application for settled status, they should advise their employer, who can then use the Employer Checking Service to confirm their working status.
If the worker’s settled status application remains pending after six months, the employer should carry out a follow-up check. If the follow-up check reveals the application has in fact been refused, and the worker no longer has a right to work, the guidance states the employer should take steps to avoid illegal employment, which would generally require the contract to be terminated.
Top-tip! The timing of any termination however is not entirely straightforward and employers need to be aware of the implications which the statutory appeal timeframe has on any proposed dismissal. Always take advice if you are looking at dismissing an employee for not having a right to work.
How can we help!?
Howarths brings together expertise in UK immigration law, employment and HR and we are working with the SME market to ensure that they are compliant with these fundamental employment checks.
We offer a full Right to Work consultancy service to provide guidance to help you to meet your legal duties. Our service includes (amongst other things!) being able to review your existing Right to Work checking and monitoring policies and processes for EU workers and advise on areas of risk- providing recommendations on areas of improvement. We offer an audit service to ensure that your personnel records are up to date and can provide Right to Work and EUSS training for your HR teams, line managers and supervisors.
If you would like to learn more about your legal obligations in respect of right to work checking and the immigration compliant onboarding of EU workers then please do not hesitate to contact me at firstname.lastname@example.org or on 01274 864999. Training enquiries can be directed to email@example.com
The third and final part of the mini-series will be popping into your inbox soon so keep your eye out! In this final email, I will cover some FAQs on the matter of Right to Work Checks.
Author: Charlotte Geesin, Legal Director