Managing the uncertainty - employment of EU nationals
- Date: Monday 24th April 2017
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Article 50 was triggered on the 29 March 2017 but what are the implications for employers with EU nationals amongst their permanent and temporary workforce?
The current position when employing EU nationals in the UK
All the rights and obligations of EU membership continue to apply until Article 50 negotiations have been concluded meaning EU nationals still have rights to live and work in the UK.
EU nationals may apply for a qualifying person residence card or, if they have been a resident for a period of five years, a permanent residence card. But there is no obligation to do so and the cards are only evidence of a right that is automatic (they do not confer any new rights).
Discrimination on grounds of nationality
The Equality Act 2010 prohibits discrimination on the grounds of nationality. Employees would have a claim for direct discrimination if they were treated less favourably based on the fact that they are an EU national. Be aware that placing an EU national on a fixed-term contract, rather than a permanent contract, is likely to be less favourable treatment, as will a decision not to employ someone because they are an EU national.
EU citizens may also have an indirect discrimination claim if a business puts in place a policy that puts them at a particular disadvantage compared to non-EU citizens. A policy where those without permanent residence are placed on fixed-term contracts is likely to be such a disadvantage. If an EU worker on a permanent contract can no longer be employed lawfully, then it will be fair to dismiss such an employee.
The Government has denied using EU workers as a bargaining chip and has not guaranteed EU nationals the right to stay. The negotiations will be followed closely by Employers with EU nations and as developments unfold we will update you further.