After the 1st January 2021, there will be new rules relating to the employment of new  EU, EEA or Swiss citizens and other overseas nationals in UK based roles.

We have broken the changes down into two groups – existing employees from the EU, EEA or Switzerland and new employees from the EU or other overseas locations.

Proof of right to work

There has been a requirement for employers to obtain proof of right to work for all employees who work in their Company for some time now.  For the majority of employees, a copy of their passport or national identity card (UK, EU, EEA or Swiss) is sufficient proof and should be retained for the duration of their employment.

If you haven’t already done this, it would be wise to undertake an audit of your personnel files to ensure you have suitable proofs for all of your current team.

Where an employee has applied online for settled status or hold a valid work Visa they will have a share code – if the employee provides this you can check their eligibility to work here.

Current team members

Employees who are EU, EEA or Swiss citizens can continue to work in the UK and have until the 30th June 2021 to obtain settled status.  Settled status comes in two forms:

  1. Settled status is where the person has lived in the UK continuously for at least 6 months a year for 5 years by 31st December 2020.  This status provides indefinite leave to remain and work in the UK.
  2. Pre-settled status is where the person does not have the 5 years continuous residence by the 31st December 2020, and so can remain in the UK and work for 5 years and then apply for settled status once 5 years has passed.

An employer cannot require an employee to disclose if they have settled status as part of a job application or their ongoing employment until the 30th June 2021.  After this date, you can require employees to disclose their status.  See discrimination below.

More information on settled status can be found here.

New employees after 1st January 2021

This falls into 3 groups, those who are already resident in the UK when they apply for a role, those who have arrived after the 1st January 2021 and those that are overseas and wish to work in the UK.

  • Where someone is in the UK when they apply for the role it may be wise to establish if they were a resident in the UK prior to the 31st December 2020 (you can’t mandate an answer) and therefore you should request proof of right to work in the normal way if they are from the EU, EEA or Switzerland.  They will have until the 31st June 2021 to obtain pre-settled status.
  • If they have arrived in the UK after the 1st January 2021 and up to the 30th June 2021 then you can still ask for proofs in the normal way and employ them on that evidence, but the employee may need a visa to work in the UK.  Government guidance is a bit thin on any potential liability an employer may have if they employ someone without a valid visa but current Government guidance states that normal proof of right to work is acceptable for EU, EEA or Swiss citizens until 30th June.
  • After the 1st of January, if the employee is living outside of the UK when they apply, then they will need a valid work visa prior to starting work for you.  The UK Government will launch its new points-based immigration system on the 1st January and prospective employees wishing to take up posts in UK Companies will need to confirm that:
  1. There is a job offer from an approved sponsor
  2. They can speak English at a required level
  3. The job is at an appropriate skill level; and
  4. The salary is a minimum of £20,480 (they will need to make up some ‘tradeable’ points where the salary is below £25,600).

In order to employ someone who is overseas when they apply to work in your Company, you will need to obtain a sponsor license which costs £536 for a small company (annual turnover of £10.2 million or less and average no. of employers not more than 50) or £1,476 for a medium or large organisation.

More information can be found here on licenses.

If the person is already resident in the UK and have valid proof of right to work when they apply you do not need a sponsor license.

Avoiding discrimination

Employers will need to tread carefully after the 1st of January 2021, to avoid any potential claims of discrimination on the grounds of race for refusing a job applicant a post due to requiring proof of settled status or asking them to provide proof of a valid visa.

Therefore best practice is to continue with normal proof of right to work checks for all employees until the 30th June 2021 and treat all applicants equally.

Actions to consider

  1. Ensure you have an up-to-date policy on employing overseas workers and know the guidance on what eligible proofs of right to work are.
  2. Undertake an audit of your current personnel files to ensure you have proofs for your current team members.
  3. Ensure hiring managers are aware of the new rules and requirements from the 1st January 2021.