As it stands, citizens of the EU, EEA and Switzerland who are working in the UK are eligible to apply for the EU Settlement Scheme (EUSS). This allows workers and their families to continue living in the UK after 30th June 2021 – when the scheme ends.
However, the Home Office has provided guidance that employers should avoid asking employees about their status under the EUSS until the scheme has come to an end. Doing so would risk a claim of discrimination on the basis of country of origin.
This poses a dilemma for employers, who may incur significant costs and disruption if they hire an EU national who does not have settled status (or a claim in progress) on 1 July and must return to their country of origin. The alternative – keeping on a person without settlement status – risks prosecution from the Home Office.
Victoria Cook, a Senior Associate in Bates Wells’ Employment practice, told Bloomberg:
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, a Partner in Bates Wells’ Immigration practice, added:
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.
If you would like to discuss this further, please contact Chetal or Victoria.