Our previous update on the revised Home Office guidance for employers on right to work checks set out some frequently asked questions on the changes that will apply from 1 July 2021, now the Brexit Grace period for EEA and Swiss citizens has ended. In this blog, we consider the question of what employers should do if they discover that an existing employee has not applied to the EU Settlement Scheme (EUSS) in time. 

If retrospective checks aren't required for EEA and Swiss citizens whose employment started before 1 July 2021, how might employers know an employee didn't apply to the EUSS in time?

The revised Home Office Guidance (Guidance) is clear that retrospective checks are not required. If an employer is considering carrying out retrospective right to work checks on those who began employment before 1 July 2021, we recommend that they should seek legal advice about the risks involved in this process and the pros and cons of doing so. There is no legal requirement to carry out such checks and the process may result in certain race discrimination risks, especially if the checks are focussed on certain individuals based on their nationality or immigration status.

The Guidance acknowledges that despite there being no requirement to do so, some employers may opt to carry out retrospective checks voluntarily or conduct an internal audit on their employees' right to work and this could result in an employer discovering that someone has not applied to the EUSS in time. 

An irregular immigration status may also come to light because the employee or someone else informs the employer that a particular employee has not applied to the EUSS in time. Employers should ensure that line managers communicate such concerns to HR if such an allegation is made so that appropriate steps can be taken in such cases.

If an employer discovers an existing employee did not apply to the EUSS in time, what should they do?

The Guidance contains information for employers about what to do if they discover that they have EEA or Swiss citizens without lawful status after 30 June 2021. Please note that this does not apply to Irish citizens who do not need to apply through the EUSS.

For employees who are EEA or Swiss citizens, the Guidance does not recommend immediate dismissal. Instead, it says: '... you may believe it to be disproportionate were you to take immediate steps to cease their employment" if they tell you that they missed the deadline through no fault on their own.

The Guidance then sets out a specific process (below) to follow for EEA citizens employed before 30 June 2021. (Please note that these transitional arrangements are in place until 31 December 2021 only).

  • The employee does not need to be dismissed if this transitional measure applies. 
  • The employee should be told to apply to the EUSS within 28 days. They can provide a Certificate of Application to the employer to show they have done so. 
  • The employer can contact the Employer Checking Service to confirm that the employee has applied. They will receive a Positive Verification Notice which will provide a statutory excuse for 6 months. During this period either the employee will receive an outcome or a further Positive Verification Notice will have to be obtained.
  • The employee can continue to be employed whilst they wait for an outcome provided that a valid Positive Verification notice has been obtained.

If an employee is ultimately refused status under the EUSS it may be necessary to dismiss them (and if so, advice should be sought prior to dismissing them). If, however they are granted permission through a late application to the EUSS that may not be necessary. 

If an employer continues to employ an EEA or Swiss citizen whilst they make a late application, are they at risk of committing the criminal offence of knowingly employing an illegal worker?

The Guidance says that although there is a criminal offence of knowingly employing an illegal worker, this is: 

"...generally reserved for the most serious cases of non-compliance with the Right to Work Scheme. It is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with this guidance to support their employees to make an application to the EUSS."

We do recommend that employers take advice about the possible risks on a case-by-case basis. Please contact us if you have any questions or would like advice.

Do employers risk a civil penalty for continuing to employ an EEA or Swiss citizen who hasn't applied timeously to the EUSS, if they follow the Guidance?

Employers are advised to record and maintain accurate records of checks and actions taken in regard to the Guidance in the same way evidence is retained to demonstrate a statutory excuse. 

If they follow the process and retain the records, they should have a valid statutory excuse and should avoid a civil penalty. Civil penalties for negligently employing an illegal worker are normally up to £20,000 per employee.

Can an employer employ a job applicant who is an EEA or Swiss citizen if they haven't applied to the EUSS? 

If the job applicant hasn't applied to the EUSS, the guidance suggests employers might want to signpost them to make a late application. If no application is made, unless they have an alternative right to work document that satisfies the requirements of the Guidance then an employer won't be able to employ the individual.

If, however the individual has made a late application, on 6 August 2021, the government announced that late applicants and joining family members will be able to take up new employment while they await the outcome of their application. The Guidance remains that where a job applicant has a Certificate of Application confirming a valid application to the EUSS made on or after 1 July, employers should contact the Employer Checking Service to verify the application. 

As mentioned above individuals who apply from 1 July, and joining family members, will continue to have their rights protected while their application is determined. See more here

More Information 

For more information on any of the issues raised in this blog, please contact Elaine McIlroy, Erin McLafferty, or your usual Brodies contact. 

Workbox by Brodies, our HR and employment law site has detailed information on our Checking the Right to Work in the UK and EU Settlement Scheme pages.