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The end of the Brexit transition period fast approaches on the 31st December 2020. It has been difficult for employers, amidst an ongoing pandemic and uncertain political negotiations, to plan for life after the transition period. However, now is the time for businesses to be considering their current and future workforce arrangements.
On the 31st December 2020, the transition period ends along with the freedom of movement rights currently enjoyed by UK and EU nationals.
For EU, EEA and Swiss citizens, and their families, already living and working in the UK by the 31st December 2020, the EU Settlement Scheme can allow them to secure the right to live and work in the UK beyond the transition period. There is no obligation on such workers to apply for settled status under the scheme, nor for their employers to assist them in their application, but it offers a relatively straightforward means of securing their residence in the UK. If a deal is secured, the deadline to apply for the scheme is the 30th June 2021. However, in a “no deal” scenario, that deadline could change and be brought forward to as soon as the 31st December 2020.
For EU, EEA and Swiss arriving in the UK from the 1st January 2021 onwards, the EU Settlement Scheme will be closed. Instead, a new immigration system will apply that intends to equalise the treatment of EU and non-EU immigrants. The new system is open to three categories of immigrants: skilled workers, highly skilled scientists and mathematicians, and international university students/graduates. In short, this new system will focus on providing visas for vacancies that meet a certain level of salary, skill and complexity (among other factors). Employers looking to hire such workers from the 1st January 2021 onwards will need to apply under the immigration system themselves and obtain a sponsor licence.
UK workers that are already living and working in the EU will face similar issues, with equivalent settlement schemes in place across the EU, all with their own rules and deadlines. Meanwhile, for employers planning to move UK workers to the EU after the transition period, we recommend that they take immigration advice for that particular country.
With the above changes, employers may find workforce gaps in 2021 if current EU staff do not have settled status. Not only this, but future recruitment strategies may also be disrupted if businesses are seeking EU talent.
However, there are steps employers can take now to minimise workforce disruption.
Consult with existing staff – It is up to the individual to decide whether they wish to continue working in the UK, but gently raising the topic of the EU settlement scheme and discussing the individual’s plans ahead of time will ensure that the end of the transition period does not take employer or employee by surprise.
Carry out right to work checks - An employer has a legal obligation to carry out a right to work check before employing an individual. Once this has been done, it does not need to carry out further checks throughout their employment. However, it is important not to be complacent when carrying out this check. EU workers can continue to show their EU passports or national ID cards as valid proof of the right to work until the 30th June 2021, but employers will obviously be interested in knowing whether they have obtained the right to stay after that date. Employers will need to be careful not to raise any suggestions of discrimination, for example, by demanding to see proof of settled status. However, employers can help themselves by considering when the individual moved to the UK, whether they fall under the EU settlement scheme or the new immigration system, and bringing the relevant scheme to the attention of the employee.
Caveats and Warranties – Employers can help themselves by making sure that their offer letters are labelled as being sent subject to the candidate passing a right to work check and, secondly, by including a warranty clause in their contract of employment that confirms the employee is permitted to work in the UK and that they will inform their employer if that changes.
With advanced planning, a proactive outlook and by taking legal advice where needed, employers can ready themselves for the upcoming changes and prepare their workforces and hiring practices for the post-Brexit landscape.