Brexit is a popular topic for all at the moment. This is particularly true for businesses who have staff from the EEA, but also those who have EEA citizens applying for vacant positions.

Businesses must be careful to not discriminate against EEA nationals in the wake of the Brexit vote, not only because this could be a breach of the Equality Act, but also because this can be wholly unwarranted based on what we know so far about the post-Brexit plan for immigration. By Chris Cook, Partner and Head of the Employment Law Team, and Gemma Goodhead, Head of the Immigration Team at SA Law.

As things stand, EEA nationals continue to hold their rights under the free movement of people principle within EU legislation. This allows EEA nationals to move to the UK for purposes of employment without restrictions. This will, at least, continue until Brexit.

Currently, those EEA nationals who have been residing in the UK for a period of 5 continuous years as a worker, student, self-employed, and/or self-sufficient person should qualify for Permanent Residence in the UK, and can apply for a visa to evidence this. Those holding Permanent Residence in the UK no longer need to satisfy immigration requirements provided that they remain resident in the UK. Therefore these individuals, although still EEA nationals, should continue to retain their employment rights following Brexit, regardless of the final deal made.

Furthermore, for those who do not satisfy the 5 qualifying years of continuous residence rule by the time that Brexit takes effect, Theresa May has proposed that those who were resident in the UK before a ‘specified date’ (yet to be clarified but expected to be between 30 March 2017 and 29 March 2019) would be permitted to settle in the UK following the completion of 5 years of residence in the UK. This would bring these people into line with those holding Permanent Residence as detailed above, as well as holding the same employment rights as British citizens.

In demonstrating any reluctance to recruit EEA nationals for new positions, the business could make themselves vulnerable towards a discrimination claim on the basis of discrimination based on someone’s nationality. This is particularly true as many EEA citizens in the UK hold the same rights as UK citizens when applying for jobs, and it is likely that the majority of those EEA citizens in the UK will continue to have the right to work following Brexit.

Over the years, many businesses have taken steps to counter bias in their workforce especially during the recruitment process. However, unconscious bias is much harder to combat in the recruitment process. Bias, whether conscious or not, can have a detrimental effect on the diversity of an organisation and in some instances lead to discrimination against individuals and undermine diversity initiatives in the workplace.

Where a company does not hire a candidate because they are EU nationals with no settled status, their action may give rise to a direct discrimination claim. Indirect discrimination on the other hand may arise in situation where (for example) British workers are given permanent full time roles within a business, while EU nationals are treated differently and only afforded a fixed term contracts.

Other than the risk of employment disputes and possible risk of Employment Tribunal claims, discriminating against EU workers can be both disruptive and costly to the business and its reputation. It goes without saying that a diverse workforce opens up a wealth of possibilities and helps to encourage creativity, innovation and increased productivity. To avoid falling foul of discriminating against EEA nationals during the recruitment process, businesses should consider following these steps:

Requesting blind CVs from applicants
Training and testing recruitment staff to recognise any biases they may hold and the appropriate language that should be used in interviews to stop any bias

Using automated screening tools to determine whether a candidate has the skills and qualifications necessary for the role. This ensures that recruitment staff are not involved in the initial review of the applicant’s CV as these are often heavily cultured and may lead to unconscious bias.

Conducting structured interviews and skills assessment which means people are ranked more objectively for the role. Advertising the role to a wider audience. The potential of this is that there will be increase in diverse applicants.

Employers need to plan for the future in light of Brexit. However, they should not believe that being reluctant to hire European nationals would be a solution to the potential problems which the business may have following Brexit. Not only will the majority of EEA nationals currently residing in the UK be able to continue working following Brexit, but the business can open itself up to a discrimination claim which can inevitably result in the loss of money in legal fees, a possible compensation award and considerable adverse publicity.