Brexit and the Risk of Discrimination in Employment

Over the past decade, the UK has grown to become one of the most diverse and multicultural countries in the world with hundreds of thousands of EU citizens migrating for work.

Due to the rise in people relocating to the UK, the Home Office created a strict policy of ‘Right to Work’ checks requiring employers to be able to evidence that their employees hold the relevant documents evidencing their right to work in the UK.

The Home Office have imposed strict consequences for failing to complete these checks and hiring an illegal workers. Employers could face large financial civil penalties of up to £20,000 per illegal worker hired or, if the employer knowingly hires or has reasonable cause to believe that they are hiring an illegal worker, will have committed a criminal offence and could face up to 5 years imprisonment and/or an unlimited fine.

This would inevitably result in employers treating the hiring of new employees with caution to ensure they do not breach immigration requirements.

However, although businesses must be careful not to hire illegal workers, this cannot be satisfied only by refusing to hire anyone who is not British. This would be a breach of the Equalities Act, and could result in legal consequences of their own.

This is a key point to note with Brexit looming over the UK as many businesses are unsure how easy it will be to tell whether an EEA national still has the right to work in the UK post Brexit. In addition, there are concerns over the ability to retain EEA national workers when it is unclear what “visa” regime they may be subject to in future.

Businesses should not respond to the uncertainty of Brexit by declining to hire an EEA national on the basis of their nationality as this open themselves up to a discrimination claim based on an individual’s nationality.

Discrimination can materialise itself in two forms; direct and indirect discrimination. Direct discrimination is when someone is treated less favourably for a specific reason, for example, not hiring someone because they are an EEA national. Indirect discrimination may be harder to identify. This is when a practice or policy is in place which applies to everyone, but has a worse effect on a specific group, for example, only giving permanent employment contracts to employees who hold settled status (British nationality or permanent residence), with other employees receiving fixed term contracts, only affecting EEA citizens.

The consequences of refusing to hire based on nationality is a potential risk of an Employment Tribunal claim being brought, which could be costly to businesses and cause reputational damage.

Instead, other more positive responses to how to prepare for Brexit could include:

  • Developing policies to attract and retain their EEA national workers e.g. offering flexible working/benefits packages;
  • providing immigration support to their EEA national workers; and
  • lobbying the Government for effective immigration policy for EEA nationals in the future.

As things stand, EEA and Swiss nationals currently hold the unrestricted right to work in the UK under the European principal of the free movement of people, and will continue to do so at least until the UK formally exit’s the EU. Whilst they have the free right to work in the UK, they should be considered on the basis of their skills/experience alone and not face prejudicial treatment on the grounds of their nationality.

In terms of how Brexit may change the right to work of EEA nationals, those citizens with Permanent Residence, should be guaranteed to retain their right to work in the UK following Brexit(although they may be required to make a “settled status” application once the new Immigration Policy as a result of Brexit is announced). Permanent Residence is currently available for EEA nationals who have resided in the UK for 5 continuous years as a worker, student, self-employed, and/or self-sufficient person. By applying for a Permanent Residence visa, EEA nationals should continue to maintain their employment rights, regardless of the final deal made.

Theresa May has also suggested that those who do not yet qualify for Permanent Residence but entered the UK before the ‘specified date’ (expected to be sometime between 30 March 2017, when Article 50 was triggered, and 29 March 2019, when Brexit is to take place) will be permitted to remain in the UK following Brexit. Therefore, it is highly unlikely that many EEA citizens will lose their right to work in the UK following Brexit.

There is nothing to suggest that EEA citizens currently in the UK will lose the right to work following Brexit, therefore it is unjustified to discriminate against job applicants based on nationality. Employers should continue to operate as they always have done but keep an eye on future Brexit updates from the Government to stay in the know.

CONTACT CHRIS

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Chris Cook on 01727 798089.

© SA LAW 2020

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

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