Nationals from eight of the 10 accession countries that joined the European Union this month will be entitled to work in the UK. Ensure your paperwork – and theirs – is up to scratch first.
any employers are probably starting to panic because the news is full of stories about immigration irregularities involving Bulgarians and Romanians. In addition, a number of eastern European countries joined the European Union on 1 May.
Employers will no doubt be faced with job applications from nationals of these countries and will be wondering what their employment and immigration responsibilities are.
The employment responsibilities
Employees from these new accession countries will not be familiar with all the rights they may have under English law. Employers should not take advantage of their unfamiliarity to deny them their rights. If they are working in the UK legitimately, then they will have the same rights to claim breach of contract and unfair dismissal as other workers.
If they are working in the UK illegitimately then the right to claim unfair dismissal may be denied to them if the employer dismisses them on discovery of this lack of legitimacy because it is fair to dismiss an employee if they fail to comply with this statutory requirement.
Lack of proper papers to work in the UK is a failure to comply with such a requirement. Such sacking does not, however, absolve employers from their responsibility for ensuring the workers have proper working papers.
To refuse to hire anyone from those countries would be unlawful because it would constitute discrimination on the grounds of nationality, which is prohibited. Provided that an employer complied with the immigration requirements on hiring such a person, it could lawfully hire such a person.
It is also important to ensure that nationals from these countries receive at least the national minimum wage and not less regardless of the fact that they may be willing to work for less. As soon as they find out their rights, they could bring appropriate actions against employers that will be difficult to defend. Employers will also want to ensure that men and women from these countries are paid on a par with their colleagues for doing the same work.
Showing consideration for workers from the new EU joiners and ensuring they are treated like other employees will stave off any employment law difficulties in the long term.
The immigration responsibilities
A very important new and additional administrative step became effective from 1 May. Individuals from the new accession countries no longer need work permits to work legally in the UK. However, the Government says that nationals from eight of these new European Union countries – all of the new accession countries except Cyprus and Malta, known as the ‘Eight Countries’ – will be required to register with the Home Office if they start working in the UK after 1 May.
This will allow the Government to monitor the participation of workers from the Eight Countries. Employers must ensure that new recruits from these countries have registered.
Eight Countries nationals employed after 1 May who register with the Home Office will be provided with a worker’s registration certificate, which will be issued for 12 months. It confirms that they can work and live in the UK while they are working in that job. If they change jobs before they have worked continuously for 12 months the certificate will lapse, and they will have to renew their registration.
Employers will have to check that the worker has registered. It will be unlawful for them to employ a national of the new member states (who has not worked in the UK legally for 12 months) if they are not registered for the job they are doing. Once an individual has completed 12 months’ work they may apply for an EEA residence permit.
If an employer continues to employ an unregistered national from one of the Eight Countries for more than 30 days without retaining a copy of their application form or certificate of registration, the employer may be committing a criminal offence under new regulations. This will not apply if the worker in question is exempt from the registration requirement (exemption information is available from the Home Office).
The maximum penalty if convicted will be £5,000. Similarly, if the Home Office notifies an employer that its employee’s application has been refused and the employer continues to employ that person, the employer may also commit an offence.
Jacqui Learmond-Criqui is a consultant with law firm Collins Benson Goldhill
Employing nationals from the ‘Eight Countries’
When a national from one of the Eight Countries is employed, employers must:
Carry out an initial section 8 check
Check that the worker is a national from one of the Eight Countries so that an offence under section 8 is not committed. This can be done by asking them to produce a national passport or national identity card and then copying such document.
Advise the worker to register
As soon as a worker begins working, they must apply to register immediately with the Home Office. To do this, an employer will need to provide them with evidence of their employment (a contract or letter). The employer should then take a copy of the completed application form before the worker sends this to the Home Office.
The employer should keep this until it receives notification from the Home Office that the worker has been registered.
Retain the copy of the registration certificate
Once the worker has been successfully registered, the Home Office will send the employer a copy of the registration certificate confirming this. The employer should retain the copy sent to it.
Who joined on 1 May
Cyprus; Czech Republic; Estonia; Hungary; Latvia; Lithuania; Malta; Poland; Slovenia; Slovakia
For more information
The Home Office booklet, Changes to the law on preventing illegal working: short guidance for United Kingdom employers, offers guidelines for UK employers on hiring Eight Countries nationals.
For more information go to www.ind.homeoffice.gov.uk or telephone the Employers’ Helpline on 0845 010 6677.
A full guide to UK Government stamps and endorsements is included in an even more detailed Home Office guidance booklet Comprehensive guidance for United Kingdom employers on changes to the law on preventing illegal working.
The booklet explains that the Government is setting up a new Workers Registration Scheme to monitor the participation in the UK labour market of workers from the Eight Countries. Such workers who find jobs in the UK are required to apply to register with the Home Office under this new scheme as soon as they find work.