Q&A: Foreign workers in the UK

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Media captionFlexibility and seasonality have changed practices in the world of work

UK shadow immigration minister Chris Bryant has ignited a debate on foreign workers, saying that the economy should be refocused so that the large companies do not have to "bring in workers".

However, in the single market of the European Union, are companies not free to employ labour from whichever EU state they want?

Are all EU citizens allowed to live and work in the UK?

More or less, yes. Back in 2004, the UK, Ireland and Sweden opened up their labour markets to newly joined EU members without the transitional restrictions adopted by most of the other "old" EU countries. However, until two years ago, the UK required the citizens of eight countries - the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, Slovenia and Poland - to take part in what was called the Accession State Worker Registration Scheme.

This scheme, under which workers from those countries had to register with the Home Office as soon as they found employment, if they planned to stay longer than a month, was closed on 30 April 2011.

Nowadays, citizens of almost all EU countries are able to work and live in the UK without restrictions. They are able to accept offers of work, set up their own companies, be self-employed and manage businesses.

They can also come to the UK in search of work. They have the initial right of residence in the UK for themselves and their families for three months, providing they can support themselves and are not "an unreasonable burden on public funds".

The UK Border Agency says: "Your employer should not discriminate against you because of your nationality in terms of conditions of employment, pay or working conditions."

Are there exceptions?

Yes. They apply to people from Bulgaria and Romania, which joined the EU later, in 2007.

Citizens of Bulgaria and Romania normally need permission to work as an employee in the UK. They need to obtain an accession worker card, or they can work under the Seasonal Agricultural Workers Scheme (SAWS) or the Sectors Based Scheme.

If they are seeking to become self-employed, Bulgarian and Romanian citizens do not need permission, but can apply for a registration certificate to confirm their right to work as a self-employed person in the UK.

What about workers coming from outside the EU?

Citizens from outside the EU seeking work in the UK are usually subject to the points-based system for immigration.

This system of points and tiers enables people such as skilled workers, entrepreneurs and large investors to work and live in the UK. It also covers people taking up temporary employment.

To gain permission to live and work in the UK, a person usually has to be one of exceptional talent, looking to make a substantial (in excess of £1m) investment in the UK or only looking for temporary work.

What about agency workers?

The Agency Workers Regulations (AWR), which came into force on 1 October 2011, state that all agency workers are entitled to the same rights as other employees. The regulations cover both British nationals and foreign workers.

Under the regulations, workers who complete the 12-week qualifying period in a particular job are entitled to the same treatment as other employees doing similar jobs, with respect to basic employment and working conditions.

After 12 weeks, agency workers are entitled to the same rate of basic pay as someone who has been directly employed by the company. They are also entitled to extra employment benefits such as holiday pay, unsocial hours allowances and individual performance bonuses.

What about in the period up to 12 weeks?

There is scope for agency workers to be paid less then other employees in first 12 weeks. Technically, a company can take on an agency worker and get rid of them at 11 weeks, thereby avoiding having to bring their wages up to the level of those employees doing the same job who have been directly employed by the company.

Under these circumstances, a hirer would not be able to take on the same person to do the same job again within six weeks.

Peter Mooney, head of consultancy at Employment Law Advisory Services, said some employers could possibly use this method of employment to cover periods of peak seasonal demand.

However, if a hirer is found to have a pattern of 11-week jobs, an affected individual might have a case for tribunal against the employer, under the the "anti-avoidance" provisions contained in the regulations.

Liz Banks from the Recruitment and Employment Confederation said that for most businesses, constantly avoiding the 12-week deadline made no sense, because "churn can be disruptive to a workplace and they'd have to keep training new staff in their business".

"It's also worth noting that the nationality of the worker would be immaterial in this instance - employers cannot avoid the AWR 12-week provision, whether they are engaging British or EU nationals," she added.

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