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How do we check EU nationals' right to work without discriminating?

The Home Office does not require employers to find out if employees whose employment commenced on or before 30 June 2021 have applied under the EUSS.  Employers are also not required to find out when EU employees arrived in the UK.

So long as the business is satisfied that compliant right to work checks have been done and could be evidenced if needed, this check can be relied upon (as discussed above) and no further check is required.

The statutory excuse can be relied on even if the business is employing an EU national who first relocated to the UK on or after 1 January 2021 and who requires a visa to work but does not have one.

If there is any concern that compliant right to work checks have not been carried out, it is sensible to carry out a new check now, in order to identify any issues regarding an employee’s right to work status.

Carrying out new right to work checks for all employees or, for all employees who you do not have a compliant right to work check for is the safest way to avoid allegations of discrimination.

It is crucial to note that the statutory excuse is null and void if the employer has knowledge or has reasonable cause to believe that the EU national doesn’t have the right to work. In this situation, the employer would be exposed to a civil penalty and/or a criminal offence.

For this reason, our experience suggests that employers have been asking for evidence at the recruitment stage where employment was to commence on 1 January and 30 June 2021 inclusive to see when prospective employees first relocated to the UK so that they know whether or not they need a visa, rather than potentially finding out later down the line.  Employers are also carrying out audits of all right to work checks of all employees.

Read more about this and other questions in our

Right to work checks and civil penalties section.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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