Since 24 June 2016, employers have been grappling with how to deal with the consequences of Brexit and what it might mean for their workforce.  While the picture is still far from clear, employers should be reassured that the Free Movement Directive will remain in force until the UK leaves the EU.  Following the triggering of Article 50 on 29 March 2017, the process will take around two years.  This means that employers have until around March 2018 to prepare.

Preparing for the change to the immigration rules, particularly when it is not known exactly what that change will be, is difficult, but there are sensible steps that employers can take now, despite this uncertainty.

Auditing the workforce

As a first step in preparing for the workforce implications of Brexit, employers should consider whether or not they hold reliable data on which of their employees are EEA (European Economic Area) nationals in the UK or British nationals in the EEA.

Employers could conduct an information audit to establish whether or not they hold certain information on employees, including their:

  • nationality (including dual nationality);
  • location;
  • job role;
  • start date with the organisation in the UK or other EEA country;
  • contact details; and
  • length of residence in the UK or EEA country.

If an employer does not currently hold this date, collecting it will help to ensure that it has an accurate understanding of the workforce.

Assessing the impact of Brexit on the workforce

Once an employers is satisfied that it holds reliable data in relation to is European migrant workforce, it can use the data to:

  • identify the number of employees who may be affected by changes to the immigration rules;
  • identify who may qualify for permanent residency;
  • determine the cost of offering immigration assistance to all the affected individuals;
  • communicate with the affected individuals;
  • assess whether or not any business area or job role is likely to be particularly affected: and
  • consider whether or not the EEA employees would qualify for a work visa (under the current system) and, if they would not consider lobbying for a different immigration policy.

Of particular importance to employers is recognising potential future skills gaps and looking at ways that these can be addressed before Brexit.  This allows employers to put a contingency strategy in place to help safeguard against finding that they are unable to recruit into certain roles post-Brexit.

The White Paper includes a commitment by the Government to create an immigration system to encourage “the brightest and the best” to come to the UK, but employers should also consider if an end to free movement could create skills gaps or labour shortages lower down the chain.

Employers’ long-term planning could involve:

  • assessing what roles are filled by EEA nationals in the UK;
  • identifying whether or not there is a skills/labour shortage for these roles within the resident labour market;
  • where they do not already have one, considering whether or not they will need a tier 2 sponsor licence to allow them to sponsor migrant workers in the future;
  • considering whether or not the costs of obtaining work permission would be prohibitive to the business; and
  • if there is a skills/labour shortage, running a recruitment or training programme for the specific roles affected aimed at the resident labour market, potentially including apprenticeships.

Communication with the workforce

Employers should communicate with their staff regarding the impact of Brexit and provice reassurance to those feeling unsettled.  A communication to all employees could include:

  • a reiteration of EEA workers’ value to the organisation;
  • confirmation that, at the present time, there is no obligation to take action and that, until the UK leaves the EU, EEA nationals can still work freely in the UK and UK nationals can still work freely in the EEA; and
  • reassurance that the organisation is monitoring Brexit developments and will update the employees as policies are developed.

Assisting staff with protecting their immigration status

EEA nationals exercising a Treaty right in the UK can look to obtain confirmation of this status now.  Obtaining evidence of their status in the UK is a sensible step, albeit not an obligatory one, for EEA nationals in the UK.  The options to protect their immigration status available to EEA nationals exercising a Treaty right in the UK are to apply for:

  • a registration certificate;
  • a permanent residence card; or
  • naturalisation.

Employers should ensure that they understand the processes and eligibility requirements for each level of protection, and the potential effects on individuals’ rights post-Brexit, when deciding whether or not to offer assistance to staff.

Reviewing policies and documents

Employers will need to review their processes, policies and documents to identify those that may need to be amended to reflect the position of EEA nationals post-Brexit.  While more certainty is needed about the rules that will apply to EEA nationals before amendments can be made, identifying where the right to work is a considerations (such as in recruitment and on-boarding processes), and what updates may be required, could be a useful exercise.  This will help to ensure that policies and documents are ready as soon as the UK leaves the EU.

Documentation that employers could consider revising includes:

  • recruitment guides and process flows;
  • offer letters;
  • employment contracts;
  • internal right to work policies;
  • employee handbooks;
  • assignment letters; and
  • international assignment and mobility policies where applicable.