Advice from the commercial law experts…
As the clock ticks down to 29 March 2019, the UK and the EU are stepping up their preparations for the possibility of a no-deal Brexit.
So, too, should businesses. If they haven’t done so already, businesses need to urgently take steps to identify the possible risks and opportunities that may arise from the UK’s departure and put themselves in the best possible position to mitigate the risks and take advantage of the opportunities.
Deal or No Deal: Employment
If there is a deal there are no plans to change UK employment law. Employment law derived from the EU will also not change on Brexit unless and until it is amended by parliament, which is very unlikely to be on its list of priorities or politically desirable.
The pipeline of EU law into UK law will be broken, but the government has confirmed that the UK will seek to keep pace with future EU employment law through separate arrangements and that Employment Tribunals will still consider EU case law.
If there is no deal there will be little immediate change but as time progresses the UK will potentially have the freedom to implement either UK or EU employment law.
Deal or No Deal: Immigration
If there is a deal the free movement of EU workers will continue until January 1 2021.
Thereafter highly skilled workers will be prioritsed and it is likely the Tier 2 Points Based Immigration System will be adapted to allow more highly skilled individuals to be able to live and work in the UK.
In the event of a no deal Brexit free movement of workers could end as soon as March 29, 2019, although EU citizens in the UK pre-Brexit will most likely be able to stay and work in the UK. The situation for EU citizens arriving post-Brexit under a no deal is uncertain and one possibility is that a new immigration system will be implemented.
How will your workforce be affected?
To find out the answer to this question, businesses should take steps now to identify the possible risks and opportunities that may arise, in respect of its workforce, from the UK’s departure from the EU by undertaking a Brexit Assurance Audit. This expert review will put their business or organisation in the best possible position to mitigate the risks and take advantage of the opportunities.
To gain an initial overview, businesses should gather its senior management team and HR and collate all current right to work checks of its workforce, with a view to refreshing these as step one.
As the UK’s immigration system is very likely to change, businesses need to be aware of how many EU citizens it employs and what rights they have accumulated to remain in the UK. To ensure these employees can continue to work in the UK, businesses may wish to provide certainty by proactively exploring options available for those individuals. For example, possible pre-Brexit citizenship for qualifying EU nationals, indefinite leave to remain applications and employee support programmes to assist in securing settlement at Brexit or during the transitional period.
For sectors such as hospitality, agriculture and technology, recruitment and retention are very important factors to consider in light of Brexit. Businesses will need to ensure they are the preferred place to work in order to attract and retain the best talent to maintain a competitive edge. Therefore, businesses might want to look at their contractual documentation, benefit packages and performance plans.
Brexit may be an opportunity for businesses to grow their workforce resulting in a need to consider tapping into other talent pools or recruit from overseas using the Points Based Immigration system.
Businesses may want to consider other employment relationships such as using consultants or implementing apprenticeships to ensure the workforce has the necessary future-proofing skills.
Alternatively, if Brexit brings with it some of the much-publicised economic slowdown or even a precursor to a recession as predicted by even the Bank of England in recent news, employers may need to consider reorganising employees or even potential redundancies.
There is no doubt Brexit is creating a plethora of questions and the need for reviews and pre-planning. Undertaking a Brexit Assurance Audit will at least enable businesses to identify areas of risk and to consider contingency plans to retain or replace key affected employees if this proves necessary following March 2019.
I would be delighted to answer your questions and to assist you in your Brexit countdown preparations.
Associate, Endeavour Partnership