First and foremost, for the moment nothing has changed for EEA/Swiss nationals & their families.
Whilst their future immigration status is uncertain, if the UK leaves the EU, for now if an employer refuses to employ someone, or tries to dismiss them, or there is discriminatory behaviour within their business relating to these individuals, then it will almost certainly amount to race discrimination. The compensation for which is uncapped.
Immigration status, as confirmed in a recent case, is not a protected characteristic. However, any such acts taken because they are not a UK national would be associated with their nationality (which is a protected characteristic). Other cases have also found discrimination where there were policies against applications from candidates who required a work permit.
A useful Code for recruiting can be found here (Home Office Code of practice for employers : Avoiding unlawful discrimination while preventing illegal working).
There are other potential claims which could be brought as a result of EU regulations, however, that is beyond the scope of this article and there are various limitations that make it unlikely in most cases (if at all possible).
We frequently advise employers to ensure their Contracts of Employment include, amongst others, obligations for employees to notify their employer about changes to their right to work status and what happens if they cease to be entitled to work in the UK.
Any changes to the immigration rules in the future will mean a change to Contracts, Polices & working practices. The reality is that for those existing EU migrants in the UK, an agreement is most likely to be put into place rather than an immediate requirement to leave.
Finally, with the rise of discrimination and hate practices being reported, now would be a good time to remind staff of your Policies regarding discrimination, bullying & harassment.
If you need help drafting any documentation please contact Simona Hamblet at firstname.lastname@example.org and for immigration queries please contact Helen Smith, one of our External Specialists.