No-deal: managing EU workers post-Brexit

So, if we do leave the EU without a deal on 31st October what does that mean if you employ or manage a large number of EU nationals?  We now have only around 60 days to prepare, and the government will grind to a halt mid-September to mid-October.

Given its pertinence, and as a follow up to my previous post, this week’s blog covers five areas to consider as part of your post-Brexit planning for EU workers (1).

Remaining in the UK

  • First off, the EU Settlement Scheme – a government initiative that allows existing EU nationals residing in the UK to apply for the indefinite right to remain after Brexit
  • Remember that settled status will only be granted to those who have resided in the UK for 5 years – anything less than this will mean individuals will be granted pre-settled status
  • EU nationals already in the UK will have until 31st December 2020 to apply for settled status and this will not change in the event of a no-deal Brexit.
  • Any non-EU nationals who are working here may face visa fees to remain. As an employer if you choose to pay these it is a benefit in kind that would need reporting on their P11D or including in your PSA. This would also apply to any settlement fees that you paid before these were scrapped in January of this year – they should have been included in the employee’s P11D unless they reimbursed you when they received a refund.

My advice: Make information on EU nationals rights easily available and keep this up-to-date with the actions they need to take ahead of 31st December 2020, should they wish to continue to reside in the UK – do not force this on them (1). If there are certain areas of your business with a high proportion of EU workers, consider what the impact of pre-settled status would be and plan for the worse-case scenario. Remember, from the point of Brexit to 31st December 2020, employers can continue to employ any EU nationals that are already part of their workforce.

Freedom of movement

If you noticed the emphasised placed on ‘already part of your workforce’ in the last paragraph, this
next point will come as no surprise.

  • A no-deal Brexit means freedom of movement within the EU will end with immediate effect from 31st October
  • From then, no EU nationals from outside the UK will be able to arrive and begin working without a visa.

My advice: Consider what impact the loss of this pool of workers could mean for your business. If necessary, plan to launch new right to work checks when recruiting EU or other foreign nationals to remain compliant – keep an eye out on GOV.UK for any immediate changes.

Managing the situation with EU workers

  • Applying for settled status is a highly personal decision for EU nationals, and some might decide it is not the right thing for them
  • Existing EU nationals can still live and work in the UK freely until 31st December 2020 – dismissing them before then if they do not want to apply for settled status could be classed as discrimination.

My advice: Act with sensitivity and respect, inform employees of their rights, reassure, but do not enforce or pressurise. If you employ a large number of EU nationals, consider what the impact will be on your business if they choose not to opt for settled status and create a back-up plan.

Employment rights for EU workers

  • A no-deal Brexit will still mean that EU nationals already in the UK are entitled to all of the same employment rights afforded to them, including those under the Employment Rights Act 1996 and the Working Time Regulations 1998.

Discrimination

  • Similar to the above, EU workers with the right to remain in the UK will also continue to be protected by the Equality Act 2010.

My advice: Always keep an eye on acts of discrimination – at times of political unrest or upheaval as with Brexit, this can result in people (in this case EU nationals) being subject to conscious or unconscious discrimination. Ensure your policy on bullying and harassment are clearly communicated to all employees.

Sources
(1) https://www.accountancydaily.co/what-you-need-know-eu-workers-and-settled-status