How to deal with the risk of discrimination claims
Hiring workers from the European Union currently presents no problem for UK employers, because EU nationals still have the right of free movement to live and work in the UK. The same applies to workers from Iceland, Liechtenstein, Norway (the European Economic Area) and Swiss nationals.
Brexit could change all this. While it is unclear at the moment what, if any, alternative free movement rights may be negotiated as part of the arrangements for the UK leaving the EU, these rights are unlikely to remain in their current form. Although free movement applies for the time being, there is a risk that EU workers may lose their right to remain here once Brexit is finalised.
The uncertainty this creates may cause some employers to want to avoid employing EU nationals now. Organisations may be wondering why they should risk the expense and disruption of organising new hires from the EU only to lose them in a couple of years due to immigration rule changes.
The problem with this approach is the risk of discrimination claims. It is generally lawful for an employer to refuse to hire an individual who does not have the right to work in the UK (although a blanket ban on applications from those who require permission to work in the UK may be unlawful). However, refusing to hire a person because he or she might not have a right to work in the UK at some point in the future is a very different prospect.
A simple policy of not hiring any EU nationals is almost certainly unlawful. This is less favourable treatment of individuals from the EU as compared to workers from the UK, which would most likely be regarded as direct discrimination on grounds of nationality under both UK and EU law. This type of discrimination generally cannot be justified by an employer unless nationality is a ‘genuine occupational requirement’. This legal test is narrow in scope and employers are unlikely to be able to convince a tribunal that a ‘fear of future uncertainty’ satisfied it.
An alternative approach might be to adopt a policy of refusing to hire anyone who was unable to prove that he or she had an indefinite right to remain and work in the UK, including those whose status is likely to be affected by Brexit. This is more likely to be seen as indirect discrimination, because not all EU nationals would fall foul of the rule. For example, some may have dual nationality or a general right to remain in the UK due to the length of time they have already lived here.
Indirect discrimination can be justified, but an employer needs to show that the policy is a proportionate means of achieving a legitimate aim. Again, a fear of uncertainty about employees’ immigration status after Brexit is unlikely to meet this test. The position might be different once the new rules on employing EU nationals in the UK are known, especially if an EU job applicant is going to lose the right to remain here shortly after starting work because of these immigration rule changes.
So what other options do employers have? It is lawful (and often advisable) to make employment contracts conditional on the employee having and maintaining the right to work in the UK in their current role. To avoid any possible discrimination issues, this clause should be included in all employment contracts. Although this will not solve the problem of employees’ immigration status changing due to Brexit, it will help with terminating the employee’s employment if that proves necessary.
In some circumstances, it may be possible for an EU national recruit to obtain a right to remain in the UK that can be put in place before Brexit happens. For example, they may be able to apply for a permanent residence card after living and either working or studying in the UK for five years, or apply for British citizenship after 12 months of permanent residence status.
Employers should keep a close watch on the forthcoming Brexit negotiations and be ready to respond to changes in immigration requirements. But, in the meantime, there are serious legal risks in jumping the gun.
Richard Lister is a practice development lawyer at Lewis Silkin LLP
For more employment law articles, visit HR-inform