How Brexit has affected the recruitment process

Chetal Patel and Ellen Hadman outline the five essential things HR professionals need to consider when dealing with the fallout from Brexit

It’s easy to get lost in news, buzzwords and legalease surrounding Brexit, but it’s vital for organisations to keep its implications front of mind to avoid legal pitfalls.

To cut through the noise, here are the top five actions to take to ensure your organisation stays on top in the post-Brexit era.

  1. Recruitment and application forms

    Check all application forms and online documents are up to date. It’s recommended that application forms or job advertisements don’t require candidates to state their nationality and/or if they have the right to work in the UK. Also avoid asking about their UK immigration status during the initial interview, because if you later reject them and they didn’t have the right to work in the UK, you could face a potential discrimination claim. 

  2. Onboarding process

    Ensure your onboarding process is fit for purpose and transparent. Are your offer letters and contracts of employment watertight? Outline any conditions to which the offer is subject, for example, the right to live and work in the UK. Is there a responsibility on the worker to update you of changes in their circumstances, including, but not limited to, their immigration status or change of address?  

  3. Training of staff

    Train your staff on how to conduct right to work checks correctly and provide them with regular updates. Your processes are only as good as your staff. Right to work checks should be conducted prior to employment commencing. Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks. 

    There is no mandatory requirement for retrospective right-to-work checks to be conducted on EEA citizens who were employed up to and including 30 June 2021. Additionally, retrospective checks where the Covid-19 adjusted measures were used are no longer necessary. Provided employers conducted the initial right to work checks correctly prior to employment commencing, they will maintain a continuous statutory excuse against liability for a civil penalty, in the event that they are found to have employed an illegal worker.

  4. To sponsor or not

    If you don’t yet have a sponsor licence but anticipate needing to recruit EU employees, consider applying for a sponsor licence. Standard processing time is eight weeks, but this does not include the time taken to prepare an application and gather the necessary documents. 

    The Home Office can conduct a pre-licence compliance visit so it is important to ensure you have the necessary HR systems in place. If your intention is to sponsor an individual and that’s the reason for your sponsor licence application, consider at the outset of the recruitment process what evidence you need to retain in order to meet Home Office requirements. 

  5. Future plans

    What are your future recruitment plans? Will you need to sponsor individuals? Do you know what immigration status permit is required for individuals to work without the need for sponsorship? Are you moving to a hybrid way of working? Will some staff be based at home and/or in the office? These are points that need to be thought about when considering the above issues. If you have regional offices you may need to ensure a consistent approach is taken and all staff are trained in the relevant areas. Written guidance may be helpful to produce. 

Chetal Patel is a partner and Ellen Hadman a paralegal in the immigration department at Bates Wells