What do employers need to do about a no-deal Brexit?

By Croner’s head of legal, Andrew Willis

With news that the government has ask the Queen to suspend Parliament from mid-September and the odds of a no-deal Brexit increasing, employers are, understandably, concerned and  curious as to how their HR operations will be affected in a no-deal scenario.

One of the key considerations when it comes to Brexit is the future of EU nationals living and working in the UK. The latest statistics suggest over two million Europeans are currently in paid employment in the UK, and the idea of losing access to these employees overnight could be damaging to many organisations.

UK employers will be glad to know that the EU Settlement Scheme will still be in place, allowing EU nationals the opportunity to apply for the right to remain indefinitely. However, the main difference in the event of a no-deal is that only those already residing in the UK by October 31st 2019 will be able to apply for settled status and will have until 31st 2020 December to do so.

The freedom of movement principle, which allows EU nationals to live and work in the UK without restriction, is set to end immediately on 31st October 2019. This means employers will no longer be able to hire EU nationals without the necessary clearance from the Home Office and greater efforts will need to go into right to work checks when hiring a foreign worker.

Those given the right to remain in the UK will be entitled to all of the same rights they are currently afforded, including those under the Equality Act 2010. Employers should keep a particularly close eye on acts of discrimination if the UK does depart the EU on 31st October 2019, as this may embolden other staff or third parties to subject EU employees to discriminatory language based on their nationality. Employees should be protected from such behaviour and any incidents, however minor they may appear, must be investigated appropriately.

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In terms of employment law, the government recently released guidance that suggested a large majority of the current laws will remain, with only slight changes occurring to the rules around European Works Councils and employer insolvencies. Although these changes are unlikely to impact many employers, it is worth noting that employees in the UK will no longer be able to ask their employer to set up a Works Council after Brexit. Furthermore, the ability for UK nationals working in the EU to access a national guarantee fund in the event of insolvency may differ depending on the specific country they reside in.

With the above in mind, employers must plan accordingly for the possibility of a no-deal Brexit on 31st October. It is essential that line managers are fully aware of all recent developments and that important information is provided to EU employees in good time.  Existing policies and business practices, such as those on recruitment and right to work checks, may need to be adjusted and employers should keep their ear to the ground to prepare for every eventuality.

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