What should an employer do if it becomes aware that an EEA national employee does not have settled or pre-settled status?

European Economic Area (EEA) and Swiss nationals who were in the UK before the end of the Brexit transition period on 31 December 2020 should have applied for settled or pre-settled status to retain their right to work in the UK. The deadline for applications under the EU settlement scheme was 30 June 2021, but late applications can be made where the applicant has "reasonable grounds" for missing the deadline. (Irish nationals are not required to obtain settled or pre-settled status.)

Until 30 June 2021, employers were able to rely on EEA and Swiss passports as valid evidence of the right to work, rather than seeing evidence of settled or pre-settled status. There is no requirement for employers to carry out retrospective checks to ensure that these employees have obtained settled or pre-settled status.

If an employer becomes aware that an EEA (other than Irish) or Swiss employee has not applied under the settlement scheme and does not have another status giving them the right to work in the UK, government guidance sets out a procedure for the employer to follow.

The employer must advise the employee to make an application under the settlement scheme within 28 days and provide the employer with a certificate of application. The employer must then contact the Home Office Employer Checking Service, to obtain a Positive Verification Notice (PVN). This will give the employer a statutory excuse against a civil penalty for six months. It can continue to employ the employee during this time, while their application is processed.

The employer must carry out a follow-up check before the PVN expires. It can obtain a further PVN if the application is still outstanding.

If the employee's application for settled or pre-settled status is refused, or they do not make an application within the required 28 days, the employer must take steps to end their employment.

This transitional measure, allowing employers to continue to employ an employee while their late application is dealt with, applies until 31 December 2021. It applies only to EEA and Swiss nationals already employed by the employer on 30 June 2021.