Immigration policy and considerations

Currently, EU nationals enjoy free movement and have the right to live and work in the UK, and reciprocally, UK nationals in other EU countries. Under the terms of the transitional period agreed thus far, this arrangement is set to continue until December 2020.

However, there is political pressure on the UK Government to cut EU migration after Brexit. If EU nationals in the UK are no longer part of a free movement provision, new immigration rules are required to regularise the position.

The CIPD has provided evidence and advice to the Migration Advisory Committee which in turn has published its recommendations to government in September 2018. Foremost among those recommendations is that there should be a less restrictive regime for higher-skilled workers. However, a viable, low-skilled route for EU migrants was deemed unnecessary and this has raised concern among employers, with 90% of them saying in Autumn 2018 that these migration proposals would not, or only to some degree, meet their needs for low or medium-skilled labour.

While a concrete post-Brexit immigration policy is yet to be finalised, employers should take the opportunity to consider their employees and the number of them who may be affected by the change in circumstance. This can be done easily by cross-referencing existing records kept through the ‘right to work’ provisions.

Other questions that employers must now address include:

  • What does Brexit mean for employees who are EU 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 EU nationals in the future?

Our updates and guidance below provides practical help for employers to understand and manage these considerations.

EU withdrawal process and effect on employment law

With the triggering of Article 50 of the Lisbon Treaty in March 2017, the UK’s withdrawal from the EU is scheduled to come into effect on 29 March 2019. Now that the EU has approved the negotiated terms, the UK’s withdrawal agreement needs to be ratified by Parliament.

Leaving the jurisdiction of the Court of Justice of the European Union may take place at a later date, depending on the terms of the final agreement (the UK will still be bound by decisions from the European Court of Human Rights which is not an EU institution). When that does happen, it will likely lead to case law changes as employment cases go through the appeal process. Holiday pay and accruing holiday on long-term sick leave are prime examples of 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?