With Theresa May triggering Article 50 of the Lisbon Treaty on the 29th March
2017 UK employers have been left in a period of uncertainty. The UK and EU have
two years to agree the terms of our departure. We are at the start of a long
period of tough negotiations with the UK and EU member states concerned to look
after their own best interest. This all means that we may not know what the
employment and immigration implications of Brexit will be for some time yet. Much of
our employment law comes from the EU and many employers have staff who are EU
nationals. When Brexit starts taking effect there will no doubt to be an
impact on employers and their staff, so what action should your organisation be
taking now? Think about allocating a specific responsibility to one person or
even a Brexit team. Of course this may depend on the size and nature of your
organisation but it is possible, unless responsibility is specifically allocated,
that necessary action on Brexit will not be taken. Whoever looks after HR in your
organisation may be best to deal with the staffing aspects of Brexit for you.
The issue of free movement of UK and EU nationals will be a key factor in the
Brexit trade negotiations. Until we Brexit, there will be no change to the
rights and status of EU nationals in the UK. Theresa May has confirmed that the
future status of EU nationals in the UK and UK nationals in the EU is a priority
for agreement. So what should employers be doing now? Identifying EU nationals
working for you in the UK and, if applicable, your UK employees in the EU
will help you plan for potential labor shortages and staff mobility restrictions
that could be a result of Brexit. So you should be carrying out a workforce audit
and that should include checking: the immigration status of all members of
staff, the length of their service in the UK or abroad and,
for EU nationals, the date in which they can apply for documents to certify their
permanent residence in the UK. EU nationals acquire permanent residence in
the UK if they have exercised EU treaty rights in the UK for a continuous
period of 5 years. An EU national can do this in various ways including working
in the UK, you could encourage key eligible employees to apply for
permanent residence so that they have a right to live and work in the UK and
therefore avoid immigration restrictions that might result from Brexit. Applying for
citizenship may also be a possibility for employees subject to restrictions on
dual nationality. Brexit may affect customer demand for your services or
products or your ability to provide them, it may also make it more challenging for
you to recruit and retain staff - for example, if you employ high numbers of EU
nationals for seasonal work such as fruit picking or the tourism and
hospitality sectors. You might also identify a skills gap that is harder to
fill in the future with a more limited selection of workers to recruit from. It
seems that significantly fewer EU workers are seeking jobs in Britain
following last year's Brexit vote and many employers are concerned that EU
workers currently in the UK are planning to leave their jobs and possibly the
country in 2017. This all means you may need to think about the need for
business continuity, how your organisation can fill any gaps and
unfortunately the possibility of carrying out redundancies. Now might be
the time to factor Brexit into a review of your contracts of employment and
staff handbook. Although the government is adamant that post-Brexit our Great
Repeal Bill will continue to preserve the rights of workers, leaving the EU
will give the UK the opportunity to change and relax employment laws in due
course. If this happens then taking action early might prevent the risk of
employees continuing to enjoy enhanced EU employment rights by way of their
contracts of employment despite UK law potentially
no longer requiring this. An example might be where EU law gives employees
the right to carry over annual holiday entitlement they have not been able to
take due to sickness absence into subsequent holiday years.
UK law may develop to change this position, your employment documents could
state that carryover of holiday only occurs to the extent required by current
law. This has been a highly emotive time for UK citizens with some very strong
opinions having been expressed in the workplace.
Following the referendum there were reports of employers facing a wave of
claims from employees who felt they had been bullied for expressing views about
voting to leave the UK from colleagues who wish to remain. Also, the police
reported an increase in race hate crimes in the UK since the Brexit result. You
will want to avoid racist opinions being voiced to immigrants in your workplace.
This all leaves employers vulnerable to claims of bullying, harassment and
discrimination if they have not taken adequate steps to prevent it. Steps you
should be taking include: issuing a statement reminding employees of your
anti bullying and harassment policies and having zero tolerance of all
potentially discriminatory actions or comments, including posting on Facebook
or other social media. We are all living in uncertain times and there may be
significant changes on the horizon that will affect your business and your staff.
Now is the time to communicate with your staff and reassure them if Brexit is
going to affect your business or them. If you haven't done so already it's worth
giving your staff a calm and reassuring message of where your organisation is
now placed on Brexit, this message is likely to be that nobody currently
knows what will happen but when we do we will let you know. If you're able to do
so, confirm that nothing will change in the short term for non UK EU citizens -
it may be worth having one-to-one conversations if there are concerns they
might be feeling vulnerable in the current circumstances.