We’ve put together this Employer’s Guide to Brexit to help you navigate the changes after Brexit.
A Trade and Cooperation Agreement was made between the EU and the UK on 24th December 2020. The transition period for the UK leaving the EU ended on 31st December 2020.
It’s important for organisations to envisage how they need to adapt and face various future scenarios. This will ensure you can weather the storm and go from strength to strength in the new political and economic landscape.
The government have produced a Brexit checker tool to support you after Brexit. There are lots of useful resources and guides available for employers if you’re looking to adapt your people strategies for Brexit. ACAS, gov.uk and People Management have some great employer guides to Brexit, and toolkits to help you.
Employing EU Citizens
If you haven’t done so already, it is advisable to compile a list of employees who are EU citizens and may be affected by Brexit. Start to reach out to them to understand their circumstances and to see whether they have applied for the EU settlement scheme. It is important that EU citizens apply for the scheme by 30 June 2021 if they wish to remain in the UK after 30 June 2021 and are eligible.
Aim to maintain open and transparent communication with your employees that are affected by Brexit and consider assisting them in their application for the EU settlement scheme where appropriate.
People Management suggests a number of ways in which you can communicate with EU staff around Brexit. For example, you could post Frequently Asked Questions and an information sheet on your intranet, put up posters, or hold drop-in sessions for EU citizens working in your organisation. This will help to support them as much as possible.
Key points on the EU Settlement Scheme
We’ve listed a few key points on the EU Settlement scheme below:
- EU, EEA or Swiss citizens and their families resident in the UK before 31st December 2020 can apply to the settlement scheme now up until the 30th June 2021, to continue to live and work in the UK after 30th June 2021.
- If the application is successful, the individual will be granted either settled or pre-settled status.
- Settled status is usually given to individuals who started living in the UK by 31 December 2020 and who have lived in the UK for 5 years continuously.
- Pre-settled status is usually given to those who do not have 5 years’ continuous residency in the UK when they apply and are living in the UK when the UK exits the EU. When the individual reaches their 5-year anniversary of living in the UK, they will be able to apply for settled status. Individuals can stay in the UK for a further 5 years from the date they receive pre-settled status.
- Under both settled and pre-settled status, individuals have the right to work in the UK.
We have drafted a guide on the EU Settlement Scheme you can read here: The EU Settlement Scheme: What can employers communicate?
Things to know about the EU Settlement Scheme for employers
- It’s the individual’s responsibility to make an application to the scheme. There is no requirement for them to inform you, as their employer, or for you to ensure that they have applied.
- You cannot make an offer of employment or extension of employment on the condition that they have made an application to the settlement scheme. This is considered discriminatory.
- You must be careful not to provide any advice with regards to immigration to your employees unless qualified to do so.
- Employers are not legally obliged to communicate to employees about the settlement scheme; however, it may be useful to point them in the right direction for information.
Gov.uk have created a useful employers Brexit toolkit of information, process flowcharts and posters to help employers prepare for Brexit. You can review and also share these with your employees to better understand the settlement scheme.
Right to Work Checks
On the 1st July, Right to Work checks will change to reflect the end of the Home Office grace period following Brexit.
The draft of the fourth version of the Code of Practice on preventing illegal working was published on the 10th June 2021. Although this is a draft version, the final version will be published soon and so you should refer to this version of the code of practice for carrying out Right to Work checks after 1st July 2021.
We will summarise a few key points of interest in relation to Brexit from the new Code of Practice below, you can read the full document on their website.
Since 28th January 2019 employers have been able to carry out either a manual right to work check or an online right to work check.
More and more, the Home Office are providing digital evidence of immigration status rather than issuing physical documents. The Home Office have an online right to work checking service, however not all prospective employees or employees will have an immigration status that can be checked online. The online checking service supports checks in respect of those who hold:
- a current biometric residence permit;
- a current biometric residence card; or
- status issued digitally under the EU Settlement Scheme;
- status issued digitally under the points-based immigration system;
- British National Overseas (BNO) visa; or
- Frontier workers permit
From 1st July 2021, the Code of Practice outlines that the Home Office will digitally issue immigration status to some individuals, who will then only be able to have their right to work checked online. You must not discriminate against individuals who can only prove their right to work status using the Home Office online service.
In practice, the prospective employee would first view their own right to work profile online via the Prove your right to work to an employer service, and then choose to share this with their employer who would then be able to access this information via the online View a job applicant’s right to work details service.
If you would like support with carrying out Right to Work checks, please contact our team.
UK points based immigration system
Free movement ended on 1st January 2021. The UK has introduced a new points based immigration system which may impact your recruitment plans. Employers wishing to recruit from outside the UK will need to acquire a sponsorship licence.
Find out more in our guide: An employer’s guide to the UK points based immigration system.
Data protection after Brexit
The Data Protection Act 2018 implemented the GDPR into UK law.
Under the EU GDPR, international data transfers to third parties outside of the EU are restricted and require additional safeguards such as Standard Contractual Clauses.
There has been uncertainty around how this will impact data transfers between the EU and the UK after Brexit.
The European Commission can determine whether a third country has an adequate level of data protection, and therefore not require further safeguards for data transfers between the EU and the third country.
The Trade and Cooperation Agreement reinforces that the UK and EU are committed to high personal data protection standards. The Agreement confirms a ‘bridge’ period of four to six months before international data transfer restrictions would apply on transfers between the EU and the UK. In the meantime, the UK is seeking ‘adequacy decisions’ from the European Commission.
Employers should consider if this is relevant to your data transfers, and how you might be able to continue to transfer data between the EU and the UK if the bridge period ends without adequacy decisions.
More information is available on the ICO website.
The Court of Justice of the European Union
The UK has also left the jurisdiction of the Court of Justice of the European Union. Some will see this as positive as it will no longer interfere with UK domestic matters.
In addition, this means that the UK do not need to follow existing decisions made by the CJEU, if deemed appropriate, which may impact tribunal cases.
Possible Future Changes to UK Employment Law
In effect, the EU Withdrawal Act 2018 converted EU law into UK law.
Following the UK-EU Trade and Cooperation Agreement, the UK is not required to copy new EU law into UK law in the future, as long as employment law rights are not reduced below those in place on 31st December 2020, where this would impact trade or investment. In addition, the Agreement upholds the fundamental rights and principals in the European Convention of Human Rights.
Therefore, the UK is able to make changes away from EU law, however the EU can apply ‘rebalancing measures’ where this would affect trade or investment. As a result, this is likely to restrict major changes to employment law. However minor changes may occur where they do not impact trade or investment.
There have been suggestions that some aspects of employment law may change over time. However, in response to suggestions that workers’ rights may be at risk, the Business Secretary Kwasi Kwarteng, has commented on twitter:
“We are not going to lower the standards of workers’ rights. The UK has one of the best workers’ rights records in the world – going further than the EU in many areas. We want to protect and enhance workers’ rights going forward, not row back on them”.
Driving in the EU after Brexit
There may be changes that employers need to consider if they employ staff whose roles involve driving in the EU for business purposes.
British citizens may need one or more international driving permits in order to drive in an EU country. The type of permit will depend on which county or countries you will be driving in.
When driving in the EU or EEA, you will also need to have a motor insurance green card. You can apply for one from your insurance provider one month in advance of your trip.
Travel in the EU after Brexit
If your employees are required to travel to the EU for work or have planned a holiday, they will need to ensure that their passport has at least 6 months validity left and that it is less than 10 years’ old (even if it still has 6 months left). If this is not the case, they will not be able to travel to most EU and EEA countries (gov.uk).
It is important that employers advise their staff of this to ensure their travel plans are not affected and to minimise any disruption to business. You can check the rules of each country here: gov.uk
Find out more about visiting Europe after 1 January 2021 on gov.uk.
We hope you found this guide helpful, if you would like to discuss how Brexit may impact your people management, please contact our team.
