Tag: Brexit & implications on UK employment laws

Brexit: Implications & Considerations for UK Employers

Posted on by @deliver_els

The Brexit transition period ends on 31 December 2020 and with a UK-EU trade deal having been agreed just days ago, we look at the implications and considerations of Brexit for UK employers.

Brexit: Implications & Considerations for UK Employers

The United Kingdom officially left the EU on 31 January 2020 and the transition period, during which time the UK was treated for most purposes as if it were still an EU member state and most EU law continued to apply to the UK, ends on 31 December 2020 with a UK-EU trade deal having been agreed just days before the end of the transition period.

How Will UK Employment Law be Affected by Brexit?

It is the case that significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers. 

In fact, some EU employment laws merely incorporated protections that were already provided by UK law. For example, UK equal pay, race and disability discrimination laws preceded EU anti-discrimination obligations. Similarly, there was a UK right of return from maternity leave before EU maternity leave rights were implemented. 

EU employment law has been incorporated into UK law in a variety of ways.  Some laws are secondary legislation introduced by a government minister under powers granted by the ECA 1972.  Other laws are primary legislation (for example the Equality Act 2010 (EqA 2010)) and will remain in force until repealed. 

Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period but on a different constitutional basis, for an indefinite period, unless and until altered by the appropriate UK legislative body.

Employers’ Obligation to Prevent Illegal Working in a Post-Brexit UK

It has always been unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK, or someone who is working in breach of their conditions of stay.  Failure to identify those migrants who require immigration permission to live and work in the UK and to undertake the prescribed and ongoing “right to work” checks can result in severe criminal and civil penalties.

The maximum fine is £20,000 for each illegal worker (this increased from £10,000 on 16 May 2014). On 12 July 2016, the maximum prison sentence increased from two to five years and the scope of the offence extended from “knowingly” employing an illegal migrant to “has reasonable cause to believe” the person is employed illegally.

Right to Work Checks

Employers are required to conduct specified right to work checks on all prospective employees, including British citizens and EU nationals. The checks provide a statutory excuse for the employer if the employment is subsequently found to be unlawful. Employers must conduct the checks in a way that is not discriminatory.  To comply with their obligation to prevent illegal working, an Employer must:

  • Carry out “right to work” checks on all prospective employees before the employment starts.
  • Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK or require a document to evidence their right as in the case of non-EEA family members of EEA or Swiss nationals, or an application pending.
  • Keep records of all the checks carried out.
  • Not employ anyone it knows or has reasonable cause to believe is an illegal worker.
  • Where the employer is also a sponsor under the points-based system, it must also comply with the sponsor management system requirements.

The most common examples of people who do not require permission to work in the UK (though may still require a visa) are:

1) British citizens. However, British Dependent Territories citizens, British nationals (overseas) and British overseas citizens do require permission to work in the UK. Employers must be careful as these passports look like British passports but may not contain the right to live and work in the UK. 

2) Those who have the right of abode in the UK (which gives the right to live and work in the UK permanently, without any immigration restrictions).

3) Those who have indefinite leave to remain in the UK (also known as “settlement” or “permanent residence”).

4) EU, European Economic Area (EEA) and Swiss nationals residing in the UK before 1 January 2021. They can apply for immigration status under the EU Settlement Scheme allowing them to remain in the UK.  Applications under the EU Settlement Scheme must be submitted by 30 June 2020.   Successful applicants will receive a letter by email confirming their settled or pre-settled status. This will not, of itself, prove an individual’s status and those granted settled or pre-settled status will be able to prove their status online (View and prove your immigration status).

5) Non-EEA family members of EEA and Swiss nationals and those with a retained or derivative right of residence who can produce a UK residence document to prove their status in the UK. Applications for settled or pre-settled status, save for in a few cases, need to be submitted by 30 June 2021.

6) Persons granted refugee status or humanitarian protection.

7) Some asylum claimants. Normally asylum claimants are not permitted to work, but some may be issued with an Application Registration Card that confirms certain employment is permitted. 

8) Some overseas students can work part-time during term time and full-time during holidays.

In addition, dependants who are successful in their application to accompany or join a migrant who has been granted permission to come to the UK for longer than six months will usually be given a general permission to work.

Unless listed above, an individual is likely to need specific immigration permission to work in the UK under the Skilled Worker route or one of the other work-related categories.

EU citizens residing in the UK before 1 January 2021 can apply for immigration status allowing them to remain in the UK under the EU Settlement Scheme. Applications must be submitted by 30 June 2021. EU citizens who have lived in the UK for a continuous period of five years or more at the date of their application will qualify for settled status, while those with fewer than five years will qualify to apply for pre-settled status (which should lead eventually to settled status).

Changes to Right to Work Checks for EU Citizens 

It is important to note that from 30 June 2021, the ‘right to work checks’ Employers must undertake will change.  Set out below are the current and future requirements.

Until 30 June 2021

Employers of EU citizens will be able to rely on the EEA passport or ID card to confirm the person’s right to work in the UK until 30 June 2021.

From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

Holders of settled and pre-settled status

Holders of settled and pre-settled status will not get a paper document to prove their right to work in the UK (except that non-EU nationals will continue to hold BRCs to facilitate their travel to the UK). Instead, their immigration status will be recorded electronically and will be accessible as soon as a decision has been made on their application. The online profile can then be used to prove their right to work in the UK to employers.

The migrant’s online profile can be accessed by entering the number of the identity document used in their application for settled or pre-settled status and their date of birth. A single-use code will then be sent to the migrant’s mobile phone number or email address that they provided in their application which they will need to enter online to access their profile. Migrant’s will not need a username or password to view their profile.

Migrants will be able to go their online profile to:

  • View their status.
  • Update their details if their contact details or identity document changes.

Support for Employers

HMRC guidance on helping businesses and individuals get ready for Brexit can be found here.
If you are an Employer and require advice and support on any employment matters arising post-Brexit and/or how to prepare, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

Brexit: Implications For UK Employment Law

Posted on by @deliver_els

The transition period, which commenced on 31 January 2020 (exit day), will end on 31 December 2020 irrespective of whether a Brexit deal has been reached, but what are the implications for UK employment law?

Brexit: Implications For UK Employment Law

Background to Brexit

On 31 January 2020 Great Britain left the EU after both the UK and EU governments reached agreement on the terms of the withdrawal agreement.  The withdrawal agreement became law when the European Union (Withdrawal) Act 2018 (EUWA) received Royal Assent in June 2018 and this legislation effectively ended the supremacy of EU law in the UK and prepares the UK’s legislative framework for withdrawal from the EU.

On 17 October 2019, the EU27 leaders approved a revised political declaration on the framework for the future UK-EU relationship with amendments to the Protocol on Ireland/Northern Ireland. The political declaration is made in parallel with the withdrawal agreement, which came into force on exit day.

On 23 January 2020, the European Union (Withdrawal Agreement) Act 2020 (WAA), an Act to implement the EU-UK withdrawal agreement into UK law, received Royal Assent.  The WAA made several amendments to the 2018 EUWA.

In case no deal was reached before exit day, the government enacted a series of statutory instruments to prepare for the UK’s exit from the EU to ensure a functioning statute book on exit day.

If no relevant agreement as to the future UK-EU relationship with respect to these aspects of employment law is agreed by the end of the transition period, these provisions will apply after the transition period.

The transition period, which commenced on 31 January 2020 (exit day) will end on 31 December 2020, irrespective of whether a Brexit deal has been reached.

Potential Employment Law Implications Post-Brexit

EU-related employment law is found in both primary and secondary legislation, as well as ECJ case law, and accordingly, different mechanisms will be required to preserve or amend the law emanating from these varying sources.

Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period but on a different constitutional basis, for an indefinite period, unless and until altered by the appropriate UK legislative body.  However, from 1 January 2021 existing EU derived rights could be changed by domestic legislation, (although in practice this seems unlikely in at least the short term).

The Queen’s Speech last year set out proposals for a new Employment Bill, which will include the following measures to protect workers’ rights:

  • Creation of a new, single enforcement body, offering greater protections for workers and to support business compliance, ensuring vulnerable workers are aware of and can exercise their rights.
  • Ensuring that tips left for workers go to workers in full.
  • Introducing a new right for all workers to request a more predictable contract after 26 weeks service.
  • Extending redundancy protections to prevent pregnancy and maternity discrimination.
  • Allowing parents to take extended leave for neonatal care; and
  • Introducing an entitlement to one week’s leave for unpaid carers.

Impact of Brexit on Preventing Illegal working

Employers should be aware that EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens.

Employers will continue to be able to confirm an EEA national’s right to work using only their passport or national ID card until 30 June 2021. From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

Employers reliant on EEA or other foreign workers, they should familiarise themselves with the new immigration system, identify any staff who will be impacted by it and, if necessary, obtain a sponsor licence.  

There are no immediate actions that Employers need to take in relation to the post-transition period, but they shouldn’t ignore Brexit and should continue to monitor develops closely and take the appropriate legal and professional advice, as required.

Support for Employers

HMRC guidance on helping businesses and individuals get ready for Brexit can be found here.

If you are an Employer and require advice and support on any employment matters arising post-Brexit and/or how to prepare, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

Top 5 Employment Law Questions of August 2018

Posted on by @deliver_els

1. When is it permissible for an employer to terminate the contract of employment of an employee on the grounds of ill health?

Dismissing an employee on the grounds of ill health is anything but straight forward. Lack of capability, including when assessed with reference to health can be viewed as a potentially fair reason for dismissal under s98 of the Employment Rights Act 1996.

Assuming the employer can provide enough evidence that capability is the reason behind the dismissal, it must then be followed with a fair procedure.

Over the years, case law has established 4 main elements that constitute a fair procedure, these include:

• Consultation with the employee
• A medical investigation
• Consideration of alternative employment
• Possible ill health early retirement if there is provision for this

2. What records relating to statutory maternity pay must an employer keep?

An employer must keep the following information on each employee who receives statutory maternity pay:

• The medical certificate (MAT B1) or other evidence relating to the pregnancy that has been provided by the employee
• A record of intended dates of leave advised by the employee and the date the maternity leave officially commenced, if circumstances change
• A record of weeks that SMP was paid and the amount paid each week
• A note of any weeks in the maternity pay period for which SMP was not paid and the reasons why

3. If an employee wishes to resign after disciplinary proceedings have commenced, should the employer continue the disciplinary proceedings?

If the employee’s resignation is with immediate effect, then his or her employment will terminate. There would then be nothing to gain in continuing disciplinary proceedings without the employee who is no longer employed. However, it is important that employers store the disciplinary information for up to one year following the employee’s resignation. This information will be of great use should the employee attempt to claim constructive dismissal or unlawful discrimination following the disciplinary proceedings.

4. What will happen to EU employees after Brexit?

The rules on free movement and immigration in the UK still remain unclear. This topic has been a fundamental issue of the negotiations held between the UK and the EU.

On 8 December 2017, the UK Government announced it had come to an agreement with the EU on citizens’ rights. Following this, a further agreement was reached on the terms of the implementation period. The agreement named “Settled and pre-settled status for EU Citizens and their families” is not yet law and will be subject to change depending on the final outcome of the negotiations.

The Government have implied that there will be an implementation period, which is due to commence on 29 March 2019 (the withdrawal date) and will terminate on 31 December 2020. Under this agreement, EU nationals residing in the UK before 31 2020 will meet the criteria for settled status when they have been a UK resident for 5 years. This will give them the right to work and live in the UK without a fixed time limit.

EU nationals who do not have 5 years continuous residency will be permitted to apply for a permit, which will grant them the right to remain until they reach the 5-year mark, at this point they will be able to apply for settled status.

Those who arrive in the UK throughout the implementation period will be required to register their residency if they stay for longer than 3 months.

5. Can employers still operate childcare voucher schemes following the introduction of tax-free childcare?

Yes, employers can still operate a childcare voucher scheme. However, it is important to note that new entrants will not be eligible to join the scheme from 4 October 2018.

The Government had initially announced that the scheme would end 5 April 2018. However, it was extended by 6 months in March 2018. Employees will continue to reap benefits from an existing childcare voucher scheme, as long as they continue as employees of the employer and that employer continues to offer the scheme.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

New Research Produced by the CIPD establishes the need for a flexible, affordable, and straightforward immigration system

Posted on by @deliver_els

CIPD: As Brexit negotiations commence, business owners sound the alarm over immigration crisis

Recent research published by the CIPD has highlighted the demand for a direct, flexible and cost-efficient immigration system following Brexit.

The research produced by the CIPD displayed:

-UK employers struggled to fill low or semi-skilled jobs with UK born citizens and therefore had no option but to recruit EU nationals

-25% of employers believed that a requirement for a job offer for an EU migrant would see a negative effect on the business

-11% of business owners claim they have recruited less EU nationals since Brexit

It has been suggested that the end of free movement in the UK will cause havoc to UK businesses and public sectors, unless post Brexit Immigration Policies consider the need in the UK for not just high skilled workers but, low skilled labour workers from the EU as well. The CIPD have been seen to stress this throughout their research.

In addition, the research asks that businesses expand their recruitment and people development strategies to make sure that organisations are attracting and developing UK nationals, further pushing for the Government to make significant changes to the skills policy.

The Future: Tackling Post Brexit Labour Skills and Shortages

The Policy Report investigates the reason behind why UK employers recruit EU nationals. In addition, it reveals issues around the shortage of skills and the scope of UK nationals.

The report also makes an assessment on whether the UK’s decision to leave the EU has had any impact yet on employers in the event of recruitment and retention of EU nationals.

The main purpose of the report is to analyse solutions for the challenges and obstacles that UK employers will face when filling vacancies, in hope of forming a policy that fits all sectors.

“Alongside access to the single market, EU immigration policy is arguably the most important public policy issue facing employers and policy-makers resulting from the UK’s decision to leave the European Union.” – CIPD

The Chief Executive of the CIPD, Peter Cheese states: “Access to skilled and un-skilled labour is a huge concern for employers. If the Government does not provide a straightforward, flexible and affordable immigration system for EU nationals post Brexit, as set out in our recommendations, significant numbers of employers are likely to face real skill shortages which may hold back their growth and performance.”

“With the Brexit negotiations starting this week, there is still little clarity on the immigration system that the UK will adopt after Brexit. An overly blinkered approach focused on simply cutting immigration to tens of thousands and focusing only on high skilled employees could leave employers high and dry, especially those who rely more on EU migrants to fill low-skilled jobs. The Government must therefore consult far more widely about their plans and invite employers to play a key role in shaping the future of UK immigration policy to ensure it works for businesses and the economy.”

“Our research also suggests that while Brexit will encourage some employers to work harder to recruit local candidates and people from under-represented groups in the UK, many employers are already working to build links with schools, provide apprenticeships and invest in training and yet are unable to find the skills and people they need.”

Within the report, the qualitive research identified that many employers struggle to attract satisfactory UK Nationals to fill low paid and low skilled job roles. Additionally, it was found that employers who are classed in the lower paid sectors (retail, hospitality, factory workers and care) had a higher chance of recruiting EU migrants as their expectations were lower for wages and employment conditions.

“Our research adds further weight to evidence that employers don’t recruit EU migrants in preference to British workers, but because they attract too few British applicants. Ideally, many employers would like to recruit more young people but working in a meat factory or a care home is not top of the list for school leavers now, and never has been.” – Heather Rolfe, Associate Research Director of the National Institute of Economic and Social Research.

There has been a substantial amount of criticism in regard to efforts made by employers when attempting to attract a larger range of UK candidates. It has been suggested that this particularly occurs in organizations such as, food manufacturers, hospitality and care, which heavily rely on migrant workers.

The report concludes by urging the new Government to implement a future Immigration Policy that is viewed as, straightforward, flexible and affordable.

How Can We Help?

If you are unsure about how these potential changes to employment law might affect your business, or simply want to check your company’s compliance generally, contact us and we will undertake a full review of your current arrangements and provide you with our findings and recommendations. Call us now for your free consultation – 0800 612 4772

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