Discrimination fears

City law firm Bates Wells, has suggested employers may be reluctant to hire EU nationals as they cannot ask them whether they have status under the EU Settlement Scheme (‘EUSS’)  until after June 30th. Guidance from the Home Office says that employers cannot yet not ask employees about their status under the EUSS, as EU nationals still have until June 30th to apply. The Home Office have told employers that if they ask about this before June 30th they will be exposed to claims of discrimination on the basis of country of origin.

“Employers will need to tread extremely carefully,” says Victoria Cook, senior associate in Bates Wells’ Employment practice. “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,” she says.

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.

It is expected that UK employers will be obliged to check the status of EU employees post July 1st and may face prosecution if they fail to do so. Should any employees fail to apply for status under the EUSS or prove that they have lawful status to work in the UK via another form of visa, their employment must be terminated.

Bates Wells says 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 don’t have settled status.

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.”

Patel adds: “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.”

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