We are all aware that changes are in the air regarding Brexit and freedom of movement for EU nationals and the risk of changes to the current regime.
So it may well occur to you that it would be prudent not to take on an EU national applicant, even if their qualifications suit the position, just to be on the safe side. After all, you don’t want to be re-hiring in a year or two if freedom of movement rights change or disappear. For it is probable that negotiations between the UK and the EU will see changes on these rights.
Well, you may be putting yourself in the firing line for an employment tribunal complaint of discrimination.
To put things into perspective, it is quite lawful for you, as an employer to turn down an individual applicant who does not have the right to work in the UK.
But if the applicant has that right, but may not have it in the future – even if that future may be quite close, it is quite a different matter.
In essence you would be treating less favourably, EU nationals, compared with workers from the UK. This is very likely to be regarded as direct discrimination on the basis of nationality. This is covered by both UK and EU law.
There are grounds on which to argue the case, but it still leaves you in a vulnerable position.
Indirect discrimination, however, can – in some circumstances be justified, but fear of uncertainty about employee’s right to stay and work is again an arguable point.
Tread carefully, and as always with such issues we strongly recommend you take appropriate professional advice before taking any decision or action.
The Graham Agency, keeping you informed.