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.
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 Other laws are primary legislation (for example the Equality Act 2010 (EqA 2010)) and will remain in force until repealed.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.