Brexit and recruitment – what now?

With the news that trade deals are agreed, employers will have to turn their minds to considering the effect of Brexit on recruitment. The main impact of Brexit in employment law is in the recruitment process as immigration laws change. Employers are already under an obligation to take steps to ensure a worker’s right to work in the UK and this process is now altered in light of Brexit.

From 1 January 2021 free movement, will end. This means that EU/EEA/Swiss citizens arriving in the UK must gain permission to work in the UK. Employers are under a legal duty to prevent illegal working and can be subjected to a fine of up to £20,000 where they fail to do this.

EU citizens who are currently working in the UK should already have permission to remain via the Settlement Scheme. This applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Applications for the EU Settlement Scheme will close on 30 June 2021. Anyone arriving from 1 January 2021 onwards is not eligible to apply.

Employers will want to ensure that their employees have secured permission to remain in the UK but Government guidance on the Scheme states that it is the responsibility of the individual to have made the application. There is no requirement for the individual to inform their employer that they have applied or the outcome of their application.

Going forward, employers must check the right to work of all job applicants. Government guidance states that those checks will continue under existing rules until 30 June 2021, ie there is no change to right to work checks until then. Currently, job applicants can prove the right to work with any of the following:

· their valid passport or national identity card if they’re an EU, EEA or Swiss citizen

· their valid biometric residence card if they’re a non-EU, EEA or Swiss citizen family member

· their status under the EU Settlement Scheme using the Home Office’s online right to work checking service.

While job applicants can use their status under the EU Settlement Scheme as evidence, employers cannot require them to produce this. However if the employee is willing, they can provide a share code to check their status online. If an EU citizen produces their valid passport, then this is sufficient evidence of their right to work until 30 June 2021. There is no obligation to provide their status under the Settlement Scheme. Requiring this is likely to constitute discrimination. Employers cannot make an offer of employment, or continued employment, dependent on an individual having made an application. This leaves employers in a difficulty in finding out if an applicant has arrived in the UK before or after 1 January 2021 – and guidance relating to this is still awaited.

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