Brexit checklist for employers

With the UK leaving the EU today, we look at what employers need to be considering now in relation to employing European nationals.

Employers will still able to employ European nationals who enter the UK up to 31 December 2020

Employers need to be wary of the employment risks of discriminating against European nationals after Brexit.  There should be no knee-jerk reactions with employers refusing to employ European nationals.

Up until 11pm on 31 December 2020, European nationals and their family members will still be able to enter the UK to live and work here on the same basis as they do now.  Employers simply need to check the individual’s current EEA or Swiss passport, just as they do now. To remain in the UK, the European nationals and their family members will then need to apply under the EU Settlement Scheme by no later than 30 June 2021.

Those who enter the UK for the first time after 11pm on 31 December 2020 are likely to have to qualify under the new immigration rules, which the Government has said will be in place from January 2021.  At this stage, it is still unclear what the new immigration system will look like.  However, the default position is that employers would likely need to sponsor European nationals under the Tier 2 sponsorship regime to work in the UK if the European national arrives in the UK after 31 December 2020.  It is likely it will be particularly difficult to employ overseas nationals to fill low skilled positions after 31 December 2020.

Importance of protecting your current European workforce

Businesses employing European nationals or family members of European nationals who arrive in the UK before 11pm on 31 December 2020 need to be aware that these individuals must submit an application under the EU Settlement scheme by 30 June 2021 at the very latest.  Only certain individuals are exempt from making this application:-

• those holding dual UK/EEA nationality;
• Irish nationals (but this exemption does not extend to their family members who are not Irish); and
• those holding Indefinite Leave to Remain/Enter under the UK immigration rules.

The vast majority of European nationals and their family members will therefore need to submit an application under the EU Settlement scheme to protect their ability to remain living and working in the UK. 

From the information currently available, failure to submit an application by 30 June 2021 means that from 1 July 2021 they will tip into the ‘hostile environment’.  This would likely mean that they would be unable to work in the UK and employing such an individual may constitute a criminal offence for the employer.

What should employers be doing now?

• Audit your workforce as soon as possible to ascertain who is working for you on the basis of their EEA nationality or as the family member of an EEA national.
• Communicate with staff - to reassure and signpost them for assistance with their EU Settlement Scheme applications.
• Encourage staff to apply as soon as possible and to confirm to you that they have applied for status under the EU Settlement Scheme.  You can also request that they provide you with the successful outcome of their application – i.e. the digital document confirming their right to work.  However, at the moment you should not dismiss someone who does not provide this to you as all they are required to provide to you is a copy of their European passport.
• Diarise to check that all staff have applied for settled or pre-settled status by 30 June 2021.
• Beware of overseas secondments/sabbaticals for certain individuals - for EEA nationals who initially obtain pre-settled status, they must ensure they are physically present in the UK for at least 6 months of any 12-month period to safeguard their ability to apply for settled status after 5 years’ residence in the UK.   If they are out of the UK for more than 6 months in any 12-month period, it appears that they will not be able to extend their pre-settled status or apply for settled status and so would either have to leave the UK or find another immigration category to apply under.
• Ensure any employment contracts issued are conditional upon the right to work in the UK throughout the duration of employment.
• Consider your talent pipeline and recruitment strategies as it may be harder to fill positions (particularly in low-skilled roles) after 31 December 2020.

The deadlines set out above may change so it is worth keeping an eye out for any further developments this year.