Last reviewed 2 July 2021
Opeyemi Ogundeji, researcher and employment law writer at Croner-I, explores key things employers should note on the implications of Brexit on employment law.
Coronavirus news has dominated the headlines for the past year, but the Government’s plans are still underway. On 23 June 2016, the UK voted to leave the European Union (EU). Originally scheduled for 29 March 2019, the date the UK was to officially leave the EU was delayed to 31 January 2020, and on this date, the UK left the EU.
Although a withdrawal agreement was successfully negotiated and passed by both the UK and EU Parliaments, a transition period remained until the end of December 2020 giving both bodies ample time to work out future trade agreements.
The main impact of Brexit in employment law terms will be seen in the recruitment process as immigration laws change. Employers are already under an obligation to take steps to ensure that workers have a right to work in the UK and this process is altered because of Brexit. “Free movement of persons” which permitted all EU citizens, as well as those from Iceland, Liechtenstein and Norway (EEA countries), and Switzerland to live and work in the UK ended on 31 December 2020.
Between 1 February 2020 and 31 December 2020, EU/EEA/Swiss citizens were still able to come to the UK to work without having to obtain permission before their arrival. Since 1 January 2021, the transition period and free movement ended. This means that EU/EEA/Swiss citizens arriving in the UK need to gain permission to work here, as is currently the case with non-EU/EEA/Swiss citizens.
In March 2019, the UK introduced an EU Settlement Scheme to register EU nationals already residing in the UK before it departed from the EU. Likewise, before a localised coronavirus incident turned into the pandemic as we know it, further immigration measures were taken in the form of amendments to the already established points-based immigration system.
EU Settlement Scheme
EU nationals living in the UK by 31 December 2021 can continue to do so despite Brexit. The Government's EU Settlement Scheme was introduced to allow existing EU nationals residing in the UK to apply for settled status post-Brexit. To make use of this scheme, employees must have been in the UK by no later than 31 December 2020, with the subsequent deadline for applications being 30 June 2021.
This means that employers are able to retain any EU nationals who are already part of their workforce (by 31 December 2020) if they apply for settled status by 30 June 2021.
Employers must not exert any unnecessary pressure on individuals or expose them to any form of detriment if they choose not to apply for settled status.
It appears that 30 June 2021 is a soft deadline for applications; the Government has confirmed that late applications can be made.
Employees who have made an application by 30 June 2021 but have not yet received an outcome maintain the right to work pending the final decision. They must provide a Certificate of Application to their employer who must then follow that up with the Home Office Employer Checking Service.
Employers who identify that an employee whose right to work is subject to the EU Settlement Scheme has not applied by the deadline are able to follow a six-step procedure to give them further opportunity to apply.
Applicants will be asked to declare any criminal convictions that appear in their criminal records, either in the UK or overseas. Individuals will also be checked against the UK’s criminal database. If they have been to prison, they will usually need to have five years’ continuous residence from the date of their release.
Individuals will not be asked to disclose spent convictions, cautions, or alternatives to prosecution such as speeding fines.
Points-based immigration system
As of 1 January 2021, EU citizens (who do not have settled/pre-settled status) and non-EU citizens are treated the same under a “points-based system”’. Under this new system, non-UK citizens who seek to work in the UK, following the end of EU free movement on 31 December 2020, will need to meet certain criteria before they can be allowed to do so.
Points up to a total of 70 are to be awarded to those seeking work in the UK as follows:
having a job offer from an approved sponsor
seeking to undertake a job of an appropriate skill level
English speaking abilities
salary level from £23,040
job offer within a shortage occupation
academic qualifications achieved at PhD level.
These new rules are likely to have an impact upon employers who have come to rely on so-called low-skilled labour from the EU. In particular, there is expected to be a knock-on effect in the hospitality and catering industries, alongside agricultural operations that make use of seasonal workers from overseas. Although the Government does appear to want to provide a degree of flexibility to tackle these potential issues — by making some requirements “tradeable”— employers should not believe that their sector will automatically meet the requirements of having a skills shortage just because they are struggling to source workers.
These immigration changes represent a clear goal to reduce the number of low-skilled migrants coming to the UK and, if this is something an employer’s business relies on, they should consider steps they can take to limit the potential impact. Employers can:
encourage eligible EU nationals already working for the business to apply for “settled status” under the EU Settlement Scheme before any extended deadline
provide assistance, if possible, to those who wish to apply
explore possibly increasing the skills levels of current staff members, something that may encourage their retention and progression into roles that may be difficult to fill in future.
Additionally, the implications of Brexit are likely to be wide-reaching and it is currently unclear how other areas of employment law will be affected as a result. To this end, it is important that employers keep up to date with all immigration and employment law developments as Brexit progresses, and make sure staff are given all the information they require.