Business leaders could face uncapped fines or other serious consequences for giving immigration advice to their EU employees about their status post-Brexit.
That’s the warning today from Amy Brokenshire, Associate in the Employment team at Higgs & Sons, who said while most businesses understand who is legally allowed to work in the UK following Brexit, they are less aware of how some seemingly innocent actions could land them in hot water.
Any EEA citizen who was in the UK before the end of the transition period on December 31 now has the right to apply for settled or pre-settled status, depending on how long they have been in the country.
Amy said this is, largely, understood by employers – but urged caution when it comes to offering advice to their employees about applying for settled or pre-settled status.
She said: “Employers are treading a fine line because, whilst they understandably want to support EU employees post-Brexit, under UK law it is a criminal offence to give immigration advice without requisite authorisation. There is a real danger that well-meaning employers end up providing employees with advice on their immigration status in a way that breaches the rules, and this could have significant consequences for them.”
Amy also expressed concerns about employers’ understanding of the rules around right to work checks for EU nationals following Brexit. Under the current rules, employers do not have to carry out follow-up or retrospective checks on those who commenced employment before New Year’s Eve – as long as they carried out appropriate checks when they were recruited and they have no reason to believe they do not have the right to work in the UK. Further, employers who want to recruit an EU national between now and June 30 can continue to simply accept a passport as sufficient right to work evidence.
Amy warned that employers should take advice on what, if any, evidence they should be asking for from staff to show that they have applied for settled or pre-settled status.
“Pressuring employees for information that they are not required to obtain, or carrying out other additional checks unnecessarily, could leave employers at risk of claims of unlawful discrimination based on their nationality,” she said.
Amy said that one possible problem further down the line is if it transpires the person actually entered the country after January 1. If they did then they should have a visa to work.
Amy said: “Although the employer would still have a statutory excuse to any civil penalty that might be imposed, provided they conducted a suitable right to work check upon recruitment, they could become liable under the relevant criminal offence.
“Knowingly employing someone who doesn’t have the right to work in the UK is a serious offence and shouldn’t be treated lightly.
“If an employer does find out that they have been employing an EU national who entered after New Year’s Day, they should seek urgent legal advice. Don’t do anything rash as an employer’s obligations under employment law and immigration law don’t always align. If an employee has been employed for two years then they have unfair dismissal protection – and even if they haven’t, they may be protected by discrimination law. Making knee jerk decisions without taking proper advice on a person’s status could therefore lead to claims that potentially result in uncapped compensation.”
For advice on all employment and immigration matters, contact Amy Brokenshire on 01384 327214 or [email protected]