As we approach Brexit next year, employers in the UK currently find themselves in a difficult position when it comes to the recruitment and retention of EU staff.
The government has published an EU settlement scheme that sets out detailed rules on the status of EU nationals (and eligible family members) who are resident in the UK before the end of 2020.
However, there remains uncertainty as to whether the overall withdrawal agreement (the deal) will be ratified by parliament. The government has recently announced that an amended form of the settlement scheme will apply in respect of EU nationals (and eligible family members) resident in the UK by 29 March 2019 in a ‘no deal’ Brexit. However, the current political situation is nevertheless causing significant uncertainty among employers.
Despite this, there are still a number of steps employers can take now to best prepare for the UK's departure from the EU.
All employers in the UK should hold right to work paperwork for all staff, which can be used to assess how many staff members are working for the business under EU free movement rules. This audit should be kept up-to-date so employers are fully aware of the number and identity of employees who could be impacted.
Applications under the EU settlement scheme will not require much involvement on the part of employers. For example, the documents do not propose a system of employer sponsorship like the system currently in operation for non-EEA nationals.
However, it makes sense for employers to communicate with relevant staff and keep them up-to-date with the current situation – even although this is likely to mean an inability to provide concrete, cast-iron statements about the future position.
The UK government has published a toolkit to assist with staff communications; but this would need to be amended in the event of a ‘no deal’ Brexit.
The settlement scheme envisages a fairly simple application process whereby applicants will only need to prove their identity, that they meet certain residence requirements and that they are not a ‘serious or persistent’ criminal. It is envisaged that data from various government departments and agencies (such as the Department for Work and Pensions and HMRC) will be used to assess residence. However, the scheme notes that there will be a means by which to provide supporting evidence if the information held by these bodies is insufficient or inconclusive. It would therefore be wise for employers to ensure personnel files are accurate and up-to-date, so information can be accessed quickly and easily upon request.
Applications under the settlement scheme will generally cost £65. There will be no legal obligation for employers to pay this fee, but employers may wish to consider doing so – especially if visa fees are currently paid for sponsored non-EEA staff. It may be possible to enter into a costs recovery agreement requiring repayment if an employee leaves, but legal action to recover £65 is unlikely to be commercially viable in the majority of cases.
Keep your options open
The landscape for the recruitment of EU workers would likely change significantly from January 2021 onwards in the event of a deal or ‘no deal’ Brexit. It would therefore be wise for employers to keep their current recruitment strategies under review and consider possible alternative approaches should significant restrictions be placed on the recruitment of EU nationals.
Fraser Vandal is solicitor at UK law firm TLT