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Carrying out right to work checks for EU Nationals

View profile for Chloe Pereira
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Now that the Brexit transition period has ended, many employers have been asking what they should do about right to work checks for EU nationals.

What evidence can I ask for when conducting a right to work check?

The Home Office provides a checklist online which helpfully explains each step involved, what evidence you can accept, and whether, based on the type of evidence, you need to conduct a follow up check (which depends on whether the document provided falls into List A or B). The checklist can be found here.

Can I ask for right to work evidence during a recruitment process when I know the candidates are based abroad?

Requesting right to work evidence during a recruitment process and basing your decision as to whether to progress the individual based on the evidence provided could lead to claims of discrimination. Particularly if you only ask this of the candidates you believe to be non-British nationals. Instead, employers should conduct the recruitment process without factoring right to work issues into the decision-making process. At offer stage, making the offer subject to the individual having the right to work in the UK will ensure you won’t need to proceed any further should the individual not have permission.

Should I be asking for additional evidence from new EU employees, beyond their passport?

No. EU nationals can continue to provide their EU passport as evidence of their right to work in the UK until 30 June 2021, and employers cannot insist on any additional evidence. It’s only from 1 July 2021 that EU nationals applying for jobs will need to provide their prospective employer with evidence of Settled Status (or other right to remain in the UK).

Can I ask to see evidence of settled status?

Until 30 June 2021 you can’t insist on evidence of settled status. Even come 1 July, you won’t be able to insist on additional right to work evidence from existing employees unless when you first conducted their check, the evidence they provided fell within List B of the Home Office right to work checklist. You could ask employees to voluntarily provide evidence of settled status, but it’s a question which should be handled carefully to minimise the risk of an allegation of discrimination.

What if I insist a new starter provides evidence of Settled Status?

Home Office guidance is very clear that employers cannot insist on EU nationals providing anything beyond their EU passport until 1 July 2021. It warns that employers must be careful when conducting right to work checks not to discriminate. If you insist on evidence which the immigration rules don’t require, you could be exposed to a discrimination claim. For this same reason you should always conduct right to work checks consistently to all new starters (in other words, don’t only ask for right to work evidence from “foreign” employees).

What if a new starter has an EU passport, but I suspect they haven’t applied for Settled Status and/or might not qualify so will be an illegal worker come 1 July?

Terminating employment or retracting an offer where an EU national has provided their passport prior to 1 July runs a high risk of a discrimination claim. If when you conduct the check their evidence falls within List A in the checklist, you won’t be able to insist on a follow up check later down the line. However, all employers must help the Home Office prevent illegal working.

If you have reason to believe that an employee doesn’t have the right to work in the UK, but you aren’t able to insist on further evidence from them, it could be worth considering a discussion with the Home Office. These situations should always be approached sensitively and carefully in order to minimise risk to the business.

If you need further advice on Brexit and immigration changes please call us now for a friendly chat about your needs.