Requirements for Foreign Employees to Work
EU nationals have previously had the right to enter, remain in and work in the UK without a UK visa. This right will end on 31 December 2020 and EU nationals arriving in the UK after this date will be subject to the same immigration requirements as non-EU nationals. Any EU nationals living and working in the UK before this date must make an application under the EU Settlement Scheme by 30 June 2021. They should register for Settled Status (if they have been in the UK for 5 continuous years) or Pre-Settled Status (if they have been in the UK for less than 5 years).
As matters stand, from 1 January 2021 in most cases, non-UK nationals seeking entry into or permission to remain in the UK for the purpose of employment will need to apply under the new Sponsored Skilled Workers (“SSW”) framework of the Points Based System (“PBS”), which replaces the Tier 2 (General) route.
Applications under SSW can only be sponsored by Home Office approved UK-based employers on behalf of the person they wish to employ. Employers must ensure that the role for which they are recruiting is sufficiently skilled and meets the minimum salary threshold requirement, and that anyone coming to the UK speaks English to the required standard. All applicants must also meet the new Good Character requirements which means, for example, that they do not have a custodial sentence of at least 12 months. The government expects to release the final details of the PBS before 31 December 2020.
The previously applicable Tier 2 (General) route could lead to Indefinite Leave to Remain (“ILR”) after five years’ lawful residence in the UK, and the SSW will also be a route to ILR. Alternatively, UK employers can use the Tier 2 Intra Company Transfer (“ICT“) route for temporary transfers of those already employed by a group company outside the UK. Tier 2 ICT visas do not lead to Indefinite Leave to Remain.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
Foreign employers are not required to establish, or work through, a local entity in order to hire employees in the UK. How any tax and national insurance contributions will be dealt with will depend on the circumstances and advice should be sought in relation to this.
Limitations on Background Checks
There are certain background checks that must be carried out before hiring an individual. Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on candidates before employing them to ensure they have the right to work in the UK.
Employers may seek information about an individual’s criminal records history by:
- voluntary disclosure;
- official criminal records checks through the Disclosure and Barring Service.
The processing of criminal convictions data is restricted under the GDPR and Data Protection Act 2018, and guidance is currently awaited to clarify what this means in practice for employers. It is a criminal offence for an employer to require an individual to obtain a copy of their criminal records by means of a subject access request as a condition of employment, or continued employment.
Restrictions on Application/Interview Questions
Employers must ensure that discriminatory practices are not used during the recruitment process, which includes job advertisements and the interview and selection process.
It is generally unlawful for an employer to ask about the health of a job applicant, or about any disability they may have, before making an offer of employment.
There is no legislation that specifically deals with social media use in recruitment, but when using social media to assess the suitability of potential new recruits, employers need to take care not to discriminate unlawfully. Another area of risk for employers relates to data protection. Some information about an individual that is available through a social media site will constitute personal data and in some cases, it will amount to sensitive personal data under the GDPR. Employers will need to ensure that they are complying with their data protection obligations if using this information during the recruitment process.
Employers should keep clear and objective records of job applicants, focusing on the extent to which each candidate’s qualifications, skills and experience matched up to the requirements given in the job specification.