After The Referendum – What Do I Do About My EU Staff?

The answer is nothing – for now.

The UK continues to be a member of the EU and the right of free movement of workers from the EEA and Switzerland remains.  It is speculation when the actual withdrawal from the EU will happen, but there are some projections it could be the beginning of 2019 at the earliest.

Equality Act 2010

As nationality is part of ‘race’, it is a protected characteristic under the Equality Act 2010.  Other protected characteristics are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; religion or belief; sex; and sexual orientation.

So, it would be discriminatory to reject a non-UK applicant or to dismiss a non-UK worker, in anticipation of changes to free movement of workers.

Employers are still obliged to carry out checks on their workers right to work in the UK.  This is irrespective of whether the worker is a UK, EU or other national.  The checks should be carried out before employment commences (not on the first day).  The correct check should be carried out (there are different requirements dependent upon what status the worker has).  Documentary evidence of the check is to be retained.  ‘See’ original documents, ‘check’ and ‘copy.

An employer can also include a warranty clause in their contract that the worker has the right to work in the UK and will notify the employer if that right ceases.  Although this does not remove the employer’s obligation to carry out the checks.

If the right to work in the UK is removed for certain categories of workers, employers will need to respond at that time and take advice if necessary.

Victoria Wright    |    01273 249277    |    vjw@deanwilson.co.uk