Right to work in the UK – the end of the transition period

Employers have an obligation to prevent illegal working. It is unlawful to employ someone who does not have the appropriate right to work in the UK.

The EU transition period is ending on 31 December 2020. EEA and Swiss nationals employed in the UK and who entered the UK before the 31 December 2020 have until 30 June 2021 to apply under the EU settlement scheme. Employees who fall into this category will need to have applied to the EU Settlement Scheme by 30 June 2021 for either settled or pre-settled status.

What are the employment law implications where an employee loses the right to work?

Continuing to employ an employee who no longer has the right to work puts the employer at risk of civil penalties and criminal sanctions. However, identifying whether an employee no longer has the right to work in the UK can be difficult. If an employer has a belief that an employee does not have the right to work, it is essential that a fair investigation process takes place. This should give the employee the opportunity to show that they do have the right to work.

If an employee does not have the right to work in the UK, they can be dismissed without notice as the contract is void. However, the dismissal can give rise to a risk of a claim of wrongful dismissal. This is because an employee who does in fact have the right to work in the UK, has the right to receive notice of dismissal or payment in lieu of notice. If an employer has mistakenly decided that the employee does not have the right to work and dismisses without notice, that mistaken belief would not be a defence to a claim of wrongful dismissal.

In addition, dismissal can lead to a risk of a claim of unfair dismissal in respect of employees with more than 2 years’ service. The employer may be able to argue that the potentially fair reason for the dismissal was illegality or “some other substantial reason”, depending on the circumstances. However, the process that the employer has followed will be crucial in determining whether the dismissal was fair. This will include whether the employer has conducted a fair and reasonable investigation and offered the employee the right of appeal against dismissal.

The right of appeal is particularly important. The employer could be mistaken in believing that the employee does not have the right to work. An appeal process could allow the employee an opportunity to provide evidence that they do in fact have the right to work. A successful appeal would enable the employer to reinstate the employee in those circumstances.

Employers should also seek to act in a way that does not lead to an allegation of race discrimination.

Comment

It is important that employers start to prepare to ensure that all their EEA National and Swiss employees have the right to work in the UK from 1 July 2021. It is important not to leave this too late as it may lead to findings of unfair dismissal if employers dismiss employees with effect from 30 June 2021 without having followed a reasonable procedure. Employees must have enough time to explain to employers why they should not be dismissed and why perhaps they do have the right to work in the UK, even if the employer thinks otherwise.

Employers should be communicating with all employees at this stage about the change in rules and seeking to encourage employees to apply to the EU Settlement Scheme. Employers should do this in a way that is non-discriminatory which may include updates to all employees. In addition, there may be serious consequences under immigration law if an employer finds itself employing any workers illegally (however unwittingly) including civil fines of £20,000 per illegal worker.

We will be running a webinar on this topic at the end of January. Further information will be sent out by email at the beginning of January. Please sign up to be on our mailing list here.

30 November 2020

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