Let’s Talk About… Employees and Immigration Post-BrexitPosted in : Let's Talk About... on 20 November 2017
Let's talk about... some frequently asked questions about workers and immigration following Brexit
Brexit has inevitably led to a multitude of questions and concerns being raised on the part of employers regarding how the potential loss of free movement of workers between the UK and EEA countries might affect business, or give rise to wider immigration considerations in due course. Whilst these questions are currently being asked and considered it is important to remember that, with respect to EU principles of free movement, there will be no change until the UK actually leaves the EU. This means that whilst the Brexit process emerges and for the foreseeable future, those working in the UK already may continue to do so and those wishing to come to the UK to work remain able to do so, without restriction.
In the questions and answers that follow I have sought to address some of the more immediate questions that have been asked of me over recent months.
Q: Can we still employ a citizen of an EEA country?
Yes. Nothing changes in respect of immigration law, or is likely to, until the UK leaves the EU. At the moment, citizens of the EEA can work freely in the UK, as before the referendum. You should however continue to make the necessary right to work checks on these employees before they start employment.
Q: Should we change our recruitment policy in respect of EEA citizens?
Of course, there remains a question mark over how the rights of EEA nationals will be affected in the future. However, any changes to the principle of free movement, if made, are some way off and arguably too uncertain to cause radical alterations to your recruitment strategies at this time. Furthermore, whilst the status quo prevails, employers taking steps to reduce access to employment for EEA nationals may run the risk of unlawful discrimination claims.
One recommendation we have been making to our clients is to check offer letters and contracts of employment to ensure they contain the appropriate "right to work" provisions to support a contractual basis for change, if this needed in the future.
Q: What should employers be thinking about now in relation to immigration issues, if anything?
In the absence of any real certainty at this time, I have set out some steps that you may wish to consider as precautionary steps, or simply as measures to reassure your employees:
Audit: ensure you know who your EEA national employees are, together with any British workers based in any other EEA countries. Identify all new EEA recruits for ease of communication in the future.
Assess: is there an area of the business that is affected disproportionately? Is this a business critical role or is it hard to recruit to the area? How will a worker’s immigration status be affected (for example, have some already got a permanent residency etc.?) What if EEA nationals choose to leave before Brexit – will you be prepared to cover these critical roles?
Communicate: have you communicated any messages of reassurance to the workforce or let them know where they can obtain further information and how to voice concerns if they have any? You could consider gathering some common questions and circulating answers.
Support: for critical employees from the EEA particularly, should you be proactive in explaining or supporting applications for permanent UK residency or exploring other options with them? Consider offering guidance, or access to external advice on residency or citizenship and workers options.
Review: as I have recommended above, check your on-boarding documents and contracts of employment for adequate "right to work" clauses.
More on Contracts of Employment
- Is an employee that rejects an offer of suitable alternative employment entitled to notice pay in a redundancy scenario?
- Delay to employee’s start date due to Covid-19, when does continuity of employment commence?
- Can an employer withdraw offers of employment or delay start dates for new recruits in light of Covid-19?
- Ferguson & Others v Astrea Asset Management Ltd 
- Square Global Limited v Leonard 
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.