Employers may feel they are in difficult territory seeking to ensure they implement their prevention of illegal working duties correctly without breaching discrimination laws, while also offering help and support to their EEA national employees.

We have recently had confirmation from the Home Office on two points about EEA nationals and their family members:

• The government guidance – which states that employers “should not check that an employee has applied” to the EUSS – does not mean that employers cannot ask whether an employee has applied. The Home Office has clarified that the reason behind this wording is to minimise the risk of discrimination against a person who is eligible, but has not yet applied under EUSS. This is why the Home Office uses the word “check”, rather than “enquire” or “ask”. The Home Office has said that there is nothing to stop employers asking individuals whether they have applied to the Scheme. However, it is important that this does not lead to any form of discrimination against that individual.
• EEA nationals and their family members who are currently working in the UK, regardless of whether they have pre-settled or settled status (or no status under EUSS), are “settled workers” for the purposes of the Immigration Rules until the end of the transition period. And after the transition period ends, individuals with “pre-settled” status under EUSS will be “settled workers” for the purposes of the Immigration Rules – meaning Europeans with pre-settled status will have very similar rights after the end of the transition period as they had before it.

The offer of support to employees affected by the scheme has been gratefully received in our experience. This clarification highlights the consideration required to ensure that it hits the right note between the competing legal demands and desire to help.

We are happy to help with all aspects of Brexit-related strategic immigration advice, including applications under EUSS and how to prepare for the new immigration landscape. We can also assist with how to navigate tricky areas, including dealing with potential discrimination issues arising during the recruitment process and in the course of employment.