Immigration policy and considerations

There is political pressure on the UK Government to cut EU migration. Pending our negotiation of the withdrawal treaty, no immediate changes arise. EU nationals will continue to be able to move freely, work and live in member states, including the UK. But the situation remains uncertain. In the longer term, if EU citizens here are no longer part of a free movement arrangement, new immigration rules will be required to regularise the position.

While we wait to see what happens, it is worth employers assessing how many employees in their workforce might be affected. This can be done easily by cross-referencing existing records kept through the ‘right to work’ provisions. The majority may be subject to additional control in future.

While a person’s right to work remains a crucial factor for employers, the prospect of free movement coming to an end means employers must now also ask:

  • What does Brexit mean for employees who are EEA nationals?
  • How can they be given useful and reassuring information on an inherently personal and uncertain topic?
  • What needs to happen so that they and their families can continue to live in the UK?
  • What about employing EEA nationals in the future?

Our legal guide below provides practical help for employers to understand and manage these considerations.

Play Video
Brexit EU immigration update for employers - video still

Gerwyn Davies, Senior Labour Market Analyst for the CIPD, highlights five key takeaways for employers, HR and their EU workforce from the latest round of the Home Office forum on Brexit immigration.

Article 50 and the withdrawal process

With the triggering of Article 50 of the Lisbon Treaty at the end of March 2017, the UK’s withdrawal from the EU will come into effect either two years on in March 2019 or when the terms of withdrawal have been agreed, whichever happens earlier. Once the EU has agreed the terms, the UK’s withdrawal will need to be ratified by Parliament. Once the EU has agreed the terms, the UK’s withdrawal will need to be ratified by Parliament.’

Leaving the jurisdiction of the Court of Justice of the European Union (the UK will still be bound by decisions from the European Court of Human Rights) is likely to lead to case law changes as cases go through the appeal process. Holiday pay and accruing holiday on long-term sick leave may be prime examples where change could arise, but this will be incremental and Parliament could introduce legislation to deal with the current issues before this happens.

The withdrawal will not, of itself, repeal UK employment laws or immigration rules wholesale. Parliament will need to repeal the European Communities Act 1972 but many of the UK’s employment laws from Europe or stemming from European Directives have been introduced through other UK legislation. Each individual law would need to be amended or repealed one by one. Views differ as to which, if any, employment legislation will be dismantled following the UK’s departure from the EU.

However, several areas of law in the HR sphere will undoubtedly be reconsidered once the UK’s withdrawal occurs, not least employers’ consultation obligations when restructuring and planning redundancies. A number of other laws are also likely to come under the spotlight.

Equality rights

Many UK anti-discrimination provisions predate EU obligations – sex, race, disability and protection beyond employment into goods and services, all existed before the UK became an EU Member State. A more likely change could be to place limits or caps on discrimination compensation awards.

Holidays and working time

Holiday entitlement flowing from the EU Working Time Directive is another area likely to be debated. The 48-hour working week and the rules on opting out may well be top of the list for repeal, but will the UK really reduce paid holiday? Will holiday pay calculations change (for example, by excluding overtime and commission in future)? Even if the law changes, this will not override employees’ existing contractual rights.

Atypical workers' rights

EU-driven protection for agency, part-time, fixed-term and posted workers has been introduced in the UK. Those businesses using or supplying contingency workers may gain more freedom following the UK's withdrawal from the EU.

Transfer of undertakings (TUPE)

The UK’s TUPE provisions derive from the EU Acquired Rights Directive and we are likely to see changes in the rules restricting the harmonisation of terms and conditions after a TUPE transfer. On the other hand, the UK itself extended TUPE rights to ‘service provision changes’ through domestic law, not because it was obliged to do so by the EU.

Data protection

The EU General Data Protection Regulations have direct effect on member states and will require changes to the UK’s data protection law and practices. Timing is a major issue as they have to be implemented by May 2018. Unless and until exit occurs, the UK remains a member of the EU and will be required to comply, even if the UK expects to repeal these laws subsequently. Regardless of this, how many businesses will face difficulties in their cross-border trading if they opt out of these provisions even if UK law allows this?