The 40-page AN EMPLOYER’S GUIDE TO RIGHT TO WORK CHECKS published by the Home Office on 29 June 2018, 2 years after the EU referendum and more than a year after the Article 50 trigger, has no references to Brexit. It does not therefore mention what employers would have to do if there was no deal. Instead the government has relied on publishing contradicting press releases, none of which form part of this important document.
An employer faces significant civil and criminal sanctions if they employ someone who does not have the Right to Work in the UK. Whilst nationals of the European Economic Area (EEA) and Switzerland have the right to work in the UK, this right derives from the UK’s membership of the European Union. On 29 March 2019, the UK leaves the European Union as per European Union (Withdrawal) Act 2018.
This puts employers, especially those who rely on their EU workers, in a great deal of uncertainty in addition to the general Brexit-related anxiety. So, what can employers do to continue employing their EU staff and to not fall foul of the illegal working penalties post Brexit?
If there is a deal, otherwise known as a withdrawal agreement, there will be a transitional period until 31 December 2020 allowing employers to rely on the same right to work documents for European nationals such as a national passport or identity card. This would then provide EU nationals with sufficient time to apply under the EU Settlement Scheme by 30 June 2021.
If there is no deal, there will be no transition period and the rights attached to them. It is therefore important for employers to act quick and ensure they have the relevant right to work documentation in place.
Whilst we understand that the Government is considering enacting legislation which could extend the right to work regime for EU nationals, the exact details remain unclear. The EU Settlement Scheme will also be watered only providing until 31 December 2020 for EU Citizens to apply.
However, under the Government’s policy paper on citizens’ rights in a no-deal scenario confirms, that EU citizens will be able to rely on their passport or national identity card to evidence their right to work in the UK.
How can we help?
Clarkslegal LLP has been helping employers get ready for Brexit by providing vital information through factsheets, workshops and seminars. This allows employers to have confidence in their ability to retain their vital EU workforce.
The public test phase of the EU Settlement Scheme is now open. More details can be found here.
Note: The EU Settlement Scheme formally opens on 30 March 2019.