Now that Article 50 has been triggered, HR directors and employers need to navigate the choppy waters of Brexit, or risk facing discrimination claims and reputational damage. The difficulty is that there is currently no clear government policy on the rights of EU nationals currently living and working in the UK.
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Many HR firms are working with the best immigration lawyers to ensure their policies and procedures comply with current employment law.
The current legal position of EU nationals living in the UK
Although Article 50 was triggered on 29th March 2017, Britain remains a full member of the EU. This will remain the case until the two-year negotiation period has been concluded and the UK officially leaves the bloc.
Until further notice is given by the government, nothing has changed regarding the rights of EU nationals to move to the UK and exercise their Treaty rights by being employed, self-employed, studying or economically self-sufficient.
After five years living legally in the UK as a qualified person, an EU national will automatically acquire permanent resident status. They may apply for a Permanent Residence Card to confirm this, but it is not essential. However, if they wish to apply for British Citizenship, they will need to obtain a Permanent Residence Card. Around 28% of applications are rejected, the best results come from instructing an experienced immigration solicitor to help with their submission to the Home Office.
It is imperative for employers to remember that EU nationals who have been exercising their Treaty and living legally in the UK for five years or more automatically have Permanent Residence. They do not need to have a PR Card. A PR Card does not confer any new rights; it simply confirms legal rights already attained.
Ensuring your line managers are aware of the legal status of EU nationals will help your organisation avoid claims resulting from breaches of the Equality Act 2010.
The Equity Act 2010
Under the Equality Act 2010, nationality (race) is a protected characteristic. You cannot discriminate against a person on the grounds of nationality. If you treat EU nationals less favourably than people from outside the bloc, a claim for discrimination could be brought against your organisation.
It has been alleged by Patricia Connell, a French national who has lived in Britain for 30 years that since Article 50 was triggered, EU nationals are already being discriminated against by certain organisations and employers. She cited examples of banks refusing to grant mortgages and companies insisting those from the EU sign a fixed-term Employment contract.
“We know the banks are already turning down people for mortgages when they don’t have Permanent Residency because they don’t know if the people are going to be allowed to stay here,” she said.
“They don’t want to take the risk, so that is already happening.
“And even though it’s not legal we are also hearing of employers asking for proof of Permanent Residency, and if you can’t show that they just give you a fixed-term contract.
“Not everyone is doing it, but we have heard cases where it is happening even though it’s not legal.”
Risking discrimination with unfavourable conditions
Employers do have a defence against discrimination if the policy in question can be justified on the grounds it is a proportionate means of achieving a legitimate aim. For example, if you are running an authentic Italian restaurant, hiring mostly Italian workers is unlikely to fall foul of the law.
Insisting that EU nationals sign a fixed-term contract if they cannot provide a PR Card is likely to be viewed as discrimination by the Employment Tribunal. If an EU worker suddenly loses their legal right to work in the UK because of a change in the law, employers would be justified in ending their Employment with immediate effect.
A fixed-term contract would not allow an employee to avoid the issue of Brexit. What happens when the contract is up for renewal? Refusing to renew a contract because an EU national might lose their right to work in the UK at some point in the future would leave an employer wide open to a discrimination claim.
One way that HR teams can manage the uncertainty surrounding the long-term legal status of EU nationals is to include a term in all Employment contracts that Employees can be dismissed without notice if they lose the right to work in Britain. The contract can also stipulate that Employees have an obligation to keep the employer informed of any changes in their legal status.
Employers and HR teams need to be sensitive to the fact that many EU nationals are feeling scared and deeply unsettled. One way to assist them is to encourage (but not insist) they apply for a PR Card. Employers can assist employers will getting their PR Card by facilitating information sessions, putting them in touch with the best immigration lawyers and helping them pay the fee.
Although the British government has committed to not use EU nationals as pawns in Brexit negotiations, they have yet to clarify their rights. This is causing uncertainty, not only among EU nationals but industries which rely on them to fill staff shortages.
It is likely that EU nationals will become subject to immigration controls in the future, although what these will be is not clear.
To prepare for future changes, HR directors can begin to familiarise themselves with the existing Shortage Occupation List and Resident Market Labour Test. Being able to use these tools effectively could provide a commercial advantage in the future, should labour shortages result from Britain pulling out of the EU.
Planning is key when it comes to avoiding discrimination claims. HR directors need to ensure line managers are aware of the potential for tribunal proceedings to be brought if they treat EU nationals in a disadvantageous way.
Working with experienced immigration solicitors to plan for your organisation’s staffing needs post-Brexit and retaining the talent you have, is likely to result in the best outcome for your business during these uncertain times.
OTS Solicitors is one of the most respected immigration law firms in London. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Our business immigration solicitors, Teni Shahiean, Oshin Shahiean, Najma Ali and Dr Lusine Navasardyan, have extensive experience in assisting HR departments in all commercial immigration matters, including those related to Brexit.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.
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Posted on: Thursday, 27 April, 2017