As Covid continues, a flexible approach to working is vital to retain key staff

10.01.2022
Vicky Webber
Human Resources

As we approach the first anniversary of ‘getting Brexit done’, it is vital that employers understand their responsibilities under Right To Work legislation.

With 2022 starting just as 2021 began, with uncertainty around how a new variant of Covid will affect everybody’s workplace, it’s easy to forget that other seismic change which heralded the start of this year: the final implementation of Brexit. 

The consequences of this for employers and employees alike have been considerable.  The most fundamental change in the UK workforce in a generation, the move meant that EU citizens no longer had the right to continue working in the UK, unless they applied for settled status by 30th June. 

The only exceptions to this are where workers meet a series of pretty stringent criteria around things such as skills and salary levels, fulfilling roles where there are legally-recognised shortages, and being sponsored by individual employers.  

The thresholds have been set very high, which has been less of an issue in sectors such as tech pharmaceuticals and engineering, but has caused real problems in other areas such as hospitality, food production and care.  At one stage this year the entire economy was brought to a crawl by a chronic shortage of HGV drivers, a situation which hasn’t really been solved yet. 

All of this came at a time when Covid-driven lockdowns caused many EU citizens to return home, which resulted in some re-evaluating their desire to return to the UK at all, or others, to find that they were unable to return due to ongoing travel restrictions. 

For employers, who are expected to implement and comply with Right To Work legislation on behalf of the government, this has added further significant compliance changes for them to understand and navigate through, in addition to the pressures of dealing with a major and ongoing pandemic.  And there are significant penalties for those who get it wrong; not least the prospect of a Home Office check on an entire workforce if it finds that the rules have not been followed in even a tiny number of cases. 

So as the anniversary of ‘getting Brexit done’ approaches, it is vital that employers are aware of their responsibilities under Right To Work.  It is vital that employers carry out RTW checks on every new recruit, even if it seems obvious that they are British citizens with a cast-iron entitlement to be working.  Checking documents, and using the government’s online system to register those checks once the employee’s identity has been verified, is an absolute must to establish a statutory excuse against a civil penalty for employing a migrant worker illegally. 

There is no requirement to re-check longstanding EU national staff who may have joined prior to the need to apply for settled status.  According to government guidance, ‘Employers will have a statutory excuse against a civil penalty where they have carried out an initial check in the prescribed manner, as detailed within the legislation, that was in force at the time the check was completed’. 

For employers who become aware that an individual does not have the Right to Work and has not applied for settled status, the government has issued guidance on the procedure to follow, which may ultimately result in following a process to terminate their employment. 

The debate goes on about whether Brexit has increased or reduced red tape, but the timing of the changes to navigate have unarguably added an extra burden when it comes to ensuring that employees have the right to work in the UK.

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