EU national staff – right to work changes that schools should know

Major right to work changes will come into effect from 30 June 2021 which will affect all UK-based organisations, including schools, who employ EU national staff.

However, the exact position is still not entirely clear despite the Home Office’s latest statement of changes to the immigration rules which come into effect on 5 April 2021.

This article summarises the rules as they currently stand and provides key guidance for schools on this issue.

EU nationals and the right to work in the UK – the current situation

Some EU nationals will have the right to work in the UK (having secured immigration status through the EU Settlement Scheme or otherwise), others will not.

Further, some may have a time-limited permission to work in the UK, which require them to submit a subsequent application to the EU Settlement Scheme in order to secure status long term.

If as a school you employ EU national staff, you must ensure that you recognise the difference and deal with each group accordingly.

Why is this important?

It is a legal requirement to make sure that prospective employees have the right to work in the UK before their employment starts. The risk to your school for not completing the relevant checks could be significant. There are penalties imposed for employing illegal workers of up to £20,000 per illegal worker.

Further, an employer who ‘knows or has reasonable cause to believe’ they are employing an illegal worker would be committing a criminal offence. The penalty is up to five years in prison and/or an unlimited fine.

Making sure you have carried out an adequate right to work check and obtained a valid statutory excuse should allow you to avoid a civil penalty if it transpires that an employee has been working illegally.

EU nationals already in the UK

At the moment, you should continue to carry out right to work checks as you have been. For EU nationals already living and working in the country (as at 11pm on 31 December 2020) you can continue to rely on an employee’s EEA passport or ID card as confirmation of their right to work. This applies until 30 June 2021. After this, proof of immigration status under the EU Settlement Scheme will be required.

As a school you are not responsible or required to check your EU national staff have actually applied under the scheme. Also, there isn’t any legal obligation for you to communicate this to employees. We do recommend that you remind your employees of the deadline as soon as possible though, to help  support them where possible.

It is up to the individual to make the relevant application under the scheme. If they have not obtained settled or pre-settled status by this date they will be considered illegal immigrants.

You may want to direct staff to the information that the government is providing. We recommend that you make clear that you are not providing immigration advice.

The government has also prepared a toolkit to assist employers in communicating with EU nationals about the changes, which you might helpful.

Discrimination against EU citizens

As an employer, you need to be careful not to risk allegations of discrimination against EU citizens. Currently, there is no requirement for staff to inform you they have applied under the scheme or the outcome of the application. Offers of employment or continued employment should not be made on the basis of application under the scheme.

Up until 30 June 2021 your staff do not have to agree to share their status. However, it will clearly be helpful if they are encouraged to and are prepared to do so.

At the moment, there is no suggestion that you will need to carry out retrospective right to work checks confirming settled or pre-settled status. So, if you have already carried out a compliant right to work check before 1 January 2021, you will not need to repeat this when the transition ends.

EU nationals arriving on or after 1 January 2021

For those arriving on or after 1 January 2021 a new immigration system applies and eligible individuals will need to apply for permission in advance for a visa.

We are currently awaiting guidance from the Home Office in relation to the right to work checks that employers should be carrying out for employees in this category.

Current government guidance permits you to hire until 30 June 2021 using passport or national ID. It is not clear whether, once you are on notice that a visa is required,  you are expected to explore this further and, if you do not, whether this could invalidate your statutory excuse. We need to await further clarification so please do be aware of this.

More information on this issue is available on the government website.

From 1 January 2021, if you do not already have one, you will need a sponsorship licence in place in order to employ EU workers who do not hold a visa. You should ensure this is in place before looking to take on EU national staff who fall into this category.

You may also need to support employees in arranging work visas. Visas must be applied for within three months of a Certificate of Sponsorship being assigned.

Hires after 20 June 2021

Right to work checks for a new hire after 30 June 2021 will need to be undertaken in line with the new Home Office guidance, which is yet to be published. You will therefore need to consider this further once the guidance is available.

Check documentation

It will also be important to have appropriate checks in place to ensure compliance with the above and that your policies and procedures and contracts are all up to date.

How has COVID-19 affected right to work checks?

The government has temporarily adjusted the requirements of carrying out an adequate right to work check on new starters, with a view to making it easier for employers.

The following temporary changes have been made:

• Job applicants can send scanned documents or a photo of documents for checks via email or a mobile app, rather than sending the original document.
• Checks can now be carried out over video calls, during which the prospective employee must hold up the documents to the camera.
• Schools will need to record the date that the check has been carried out and mark the documents as ‘adjusted check undertaken on [DATE] due to COVID-19’.
• If the prospective employee is subject to a visa, schools will need to use the online right to work checking service to check their status during the video call.
• Once the government provides notification that the adjusted right to work procedure has come to an end (i.e. at the end of the pandemic) schools should follow the usual process. It is likely that you will need to carry our retrospective checks on existing employees who started working for you during these measures.

Further support

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For further guidance on the issues covered in this article, book a free 30-minute consultation with our Employment team today.

This content is correct at time of publication