Requirements for Foreign Employees to Work
Any non-EEA national seeking entry or permission to remain in the UK for the purpose of employment may need to apply under Tier 2 of the Points Based System (PBS) via an approved Home Office Sponsor. The Tier 2 (General) route is open to overseas nationals who have been offered a skilled role by a UK employer who has been unable to fill the skilled role with an EEA worker. Applications for permits can only be made by UK-based employers on behalf of the person they wish to employ (and not by the person themselves).
EU nationals currently have the right to enter, remain in and work in the UK without a work permit. However, as a result of Brexit, from March 2019 the UK government plans to implement a new EU Settlement Scheme whereby all EU nationals will be required to 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). The deadline to register under the new scheme is 30 June 2021. The UK government is due to release further information on new rules for EU nationals which will apply from 1 January 2021. As negotiations between the UK and EU are ongoing and there is the possibility of a ‘no-deal’ scenario, UK employers should regularly check for updates in terms of employing EU nationals.
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. 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. 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. 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. Employers will need to ensure that they are complying with their data protection obligations if using this information during the recruitment process.