Examine current staffing and identify EU nationals currently employed
We would advise that you work out the number of EU nationals you employ, who arrived in the UK prior to Brexit date. It is a relatively quick way of determining the extent to which your current staffing levels may be affected by Brexit.
Identifying the number of staff who fall into the below categories, is a way of showing the proportion of your staffing level which is ‘at risk’ of leaving employment. This is due to the requirement on them to obtain a new immigration status, which would allow them to continue to work in the UK.
- In a ‘no-deal’ scenario, those who arrived in the UK before exit day will have until 31 December 2020 to apply for a status under the EU Settlement Scheme. This status would effectively allow them to continue to work in the UK for as long as they choose to, as it seeks to protect the right to free movement which they exercised pre-Brexit.
- Those who arrive in the UK after exit day will also have until the 31 December 2020 to apply for European Temporary Leave to Remain (Euro TLR). This will give the right to work in the UK for 3 years.
Employees are not obligated to inform their employers whether or not they have obtained a status under either of these schemes, but they can already choose to use the settlement status as evidence of their right to work in the UK if they wish to.
Although employers may not force employees to share this information with them, it is acceptable to ask your employees if they would share their intentions with you in order to improve your sense of security in your staffing levels. Some organisations (particularly those with a high level of EU workers) may need to make contingency arrangements to meet demand, or to moderate customer expectations, in the event that their staffing levels should deplete quicker than they can replace staff.
(Those who do not apply by the deadline and continue to work in the UK will risk being prosecuted for the offence of illegal working. Where individuals may be personally liable, it has been confirmed that employers will not have to retrospectively check the right to work documentation of existing employees, which suggests employers will not be liable for a fine, even if their employee should lose their right to work status in the course of employment.)
Some employers will need to consider any UK nationals based in an EU member state, similarly.
Provide information about and discuss intentions of EU national employees regarding the EU Settlement Scheme
It is highly recommended employers have an open dialogue with their employees about this scheme. Please be aware that there is no legal obligation for employers to communicate the scheme and you should be careful not to interpret the information available or to provide immigration advice unless you are qualified to do so. The government have published a free Employer Toolkit, with posters, leaflets and materials to increase awareness in the workplace and to provide information to your staff. This can be accessed here:
If you feel this is not applicable to you, it is likely this is because you do not currently employ any EU nationals. Remember to be cautious that you have not made an assumption about someone’s nationality. Also remember that other nationalities may need to apply to the EU Settlement Scheme (see: Who should apply). If you should recruit (or transfer over to your employment) an EU, EEA or Swiss national in the coming months, then this may become relevant to you.
Future recruitment of EU nationals to maintain both current and projected staffing levels
Some employers may not be as concerned as others about being able to access a wider (European) talent pool to recruit from in the future. This may be because of internal succession planning or because of factors such as their location.
However, every employer needs to ensure they employ people lawfully. As freedom of movement ends and the laws on right to work checks and legal working changes, so employers should be aware that different rules will apply to them in the future. These changes may make it more difficult to recruit European nationals who do not have a settlement status.
As it currently stands, in a no-deal scenario, from January 2021 onwards, if you will need to continue to employ EU nationals who do not have a status under the EU Settlement Scheme or do not have Euro TLR, then you should monitor the developments that are on-going for future immigration arrangements. It may be wise to familiarise yourselves with becoming a ‘sponsor’ and even making an application to become one, so you are ready if need be. It is believed that not enough employers currently have a Tier 2 Sponsor Licence to be able to deal with the consequences of Brexit. So, a rush of applications is anticipated, which is likely to delay the processing time of what is already considered to be arduous process. You can find out about becoming a sponsor, including the costs involved, here: https://www.gov.uk/uk-visa-sponsorship-employers/apply-for-your-licence. Read more about this under ‘Right to work’ section of this report.
The recruitment market is currently very competitive, with unemployment at its lowest levels and an anticipated skills shortage post-Brexit. Set aside time to begin to consider how to become more attractive than your competitors to future EU national employees.
Consider; improving your ‘employer brand’, salary benchmarking exercises, benefit offerings, flexible work arrangements (particularly to enable travel) and modernising policies, procedures and company values in line with current workplace and corporate social responsibility trends. Consider your position in these ways, both in the UK and in the wider European market.
Further Brexit and HR Guidance
Visit our Brexit Business Preparation website page for more suggestions on how an organisation as a whole may identify the potential impact that Brexit could have on its operation; as well as get practical HR and employment legislation guidance on how businesses can get ready for Brexit.