Brexit update: Hiring EU nationals

As we have seen from the recent preliminary judicial review hearing (see our article Brexit update: Judicial Review of who can trigger Article 50), the government is unlikely to trigger Article 50 before the end of the year, and from the date of the notice, the UK will remain a member of the EU for two years. For as long as this is the case free movement of people applies to workers within the EEA (e.g. the EU plus Iceland, Liechtenstein, and Norway) and Switzerland.

The government has published a statement on the status of EU nationals living in the UK, stating among other things that “When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected”, and it is unlikely they will be required to return to their countries of origin immediately.

However, in the meantime it is important to continue to use your best HR judgement when considering who to employ. Refusing to employ an applicant on the basis of their immigration status could amount to race discrimination because whilst their immigration status is not a protected characteristic, it is definitely related to their nationality which is a protected characteristic. We advise that checking eligibility to work in the UK is something which should be done towards the end of the recruitment process and not at the start.

It is worth including a warranty clause in the employment contract, however, that requires the employee to notify you if their entitlement to work in the UK ceases, although this does not negate your obligation as employer to undertake the appropriate checks before and during the period of their employment, in order to avoid civil and criminal penalties. See our article Immigration Act 2016: New offence of illegal working and government guidance on changes to immigration offences too.

Published: 25 July 2016

Article Sections: Commencing Employment | International Issues

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.