HM Insights

Being settled in unsettled times: the importance of the EU Settlement Scheme for employers

The Scottish Government has revealed that only 42% of the estimated total number of EU nationals living in Scotland have applied to the EU Settlement Scheme. With Scotland's agricultural and food processing sectors highly reliant on EU labour, action is needed to ensure our workforces remain available and settled in these turbulent times.


The EU Settlement Scheme

European Economic Area and Swiss nationals, and their family members, (referred to hereafter as EU nationals) currently benefit from EU freedom of movement and the right to remain in the UK. This will end under current plans to leave membership of the EU under the Brexit split.

The EU Settlement Scheme was launched in March 2019 to protect the rights of EU nationals currently residing within the UK. There are two status that individuals can apply for:

  1. Settled status – if an individual has five or more years' continuous residence in the UK then they may be granted settled status allowing them indefinite leave to remain in the UK.
  2. Pre-settled status – if an individual has less than five years' continuous residence in the UK then they may be granted pre-settled status allowing them leave to remain in the UK for up to five years; the idea being that the individual will eventually accumulate sufficient continuous leave to apply for indefinite leave to remain.

Currently EU nationals must be resident in the UK by 31 December 2020 in order to be eligible to apply under the Settlement Scheme. Applications to the Settlement Scheme itself must be made no later than 30 June 2021. However, these dates may be subject to change.

Most individuals will be able to apply by downloading the requisite phone app and completing an online application.

Consistency for businesses

With all the unknowns surrounding Brexit which are currently faced by employers, one certainty that can be sought is looking to ensure your workforce has the right to remain in the UK. Many businesses are heavily reliant on EU nationals within their labour force so any disruption to their eligibility to work would have serious detrimental consequences for continued operations.

As such employers should look to encourage individuals to actively engage in the EU Settlement Scheme. A campaign of awareness should occur and distribution of information and literature, which can be obtained from sources such as the Scottish Government's website.

It is important that this is an exercise that applies to all employees in order to avoid any potential accusations of targeting individuals based on their nationality and exposing a business to the risk of a discrimination complaint. We can provide you with support and guidance on the best ways to avoid this risk, which when weighed against the risks of not having a stable and available workforce, should be seen as relatively minor and easily navigated with the right know-how.

Equality Act 2010 considerations

Individuals are protected from discrimination on the basis of their race or nationality as a consequence of the Equality Act 2010. This means that employers cannot subject their EU national employees to less favourable treatment as consequence of any matter arising from Brexit. Protection is also afforded to any individual applying to work for a business; denying an application of an EU national because of Brexit related concerns could easily be an act of discrimination and risk the matter being subject to an employment tribunal claim.

Get in touch

Our team of specialist employment lawyers can assist in the negotiation of employment contracts and acting for employees in any disputes that might arise. Please just contact us on 0131 247 2534 to discuss further.

Useful links