EU Settlement Scheme: What Should Employers Do If Employees Miss The Deadline?

The deadline to apply for the EU Settlement Scheme has now passed. It is possible that some EEA citizens working in the UK did not apply in time, which can leave employers unsure of what to do next or how to handle staff who have not been awarded settled status.

How will employers know whether an employee applied to the scheme?

The Home Office has provided guidance that states that retrospective checks are not required; due to this, it is recommended that any employers considering retrospective checks should obtain legal advice and understand the pros and cons before proceeding. Employers risk accusations of race discrimination if checks are carried out exclusively on staff of certain nationalities. If you do choose to pursue this option, you will be able to see whether an employee has applied to the scheme or not.

Employers may also find out about an employee not applying to the scheme through a colleague. All these allegations should be managed through your business’ HR team.

What should an employer do if they discover an existing employee did not apply?

The Guidance details the following recommended steps:

  • Before December 31st 2021, transitional arrangements will be in effect. The employee does not need to be immediately dismissed if these arrangements apply at the time of discovery.
  • You must tell the employee to apply to the EUSS as soon as possible, but at maximum within 28 days. They will have access to a Certificate of Application to prove to you that they have applied.
  • You can then confirm that the employee has applied by using the Employer Checking Service. The employee will receive a Positive Verification Notice which provides a statutory excuse for six months.
  • During the following six months, the employee will either receive an outcome or will have to obtain a further Positive Verification Notice.
  • Under the Positive Verification Notice, the employee can continue to work until an outcome is received.
  • If the employee is refused settled status, dismissal may be necessary (but first, seek advice).

How can an employer avoid civil penalties for continuing to employ an EEA citizen who has not applied in time?

Keep detailed records of all action taken and all checks performed regarding the guidance. This will assist in demonstrating a statutory excuse and will help you avoid a civil penalty for negligently employing an illegal worker.

If you need guidance regarding the EU settlement scheme or any other HR related issue, contact us today at [email protected]