With an estimated 2.3 million EU citizens working in the UK, it is important for employers to keep well-informed on how Brexit may impact your employees’ work status.
While the government has confirmed there will be no changes to the rights and status of EU citizens currently living in the UK until 30 June 2021 (or 31 December 2020 if the UK leaves without a deal), here are some matters employers should consider in light of the Britain’s departure from the European Union.
EU Settlement Scheme
EU citizens with indefinite leave to remain (ILR) in the UK automatically have an indefinite right to work. This gives invaluable legal certainty for those affected and ensures a smooth transition through for both employers and employees following the UK’s exit from the EU.
EU citizens who do not already have ILR in the UK can now apply to obtain the status through the EU Settlement Scheme. In addition to ILR and the right to work, the benefits of applying (or reapplying) through the settlement scheme include the ability to spend up to 5 consecutive years outside of the UK without losing your settled status (as opposed to the ‘traditional’ IRL’s 2-year limit).
EU citizens who have not lived in the UK for the settlement scheme’s required 5-year period may apply for ‘pre-settled status’. Full ‘settled status’ can be obtained once the 5-year criteria is met. Employers should endeavour to support those going through their application for settled or pre-settled status.
Obligations for Employers
The UK government has recently updated their ‘employer toolkit’ intended to equip employers with the right tools and information to support EU citizens and their families applying to the EU Settlement Scheme. The toolkit provides some considerations employers should keep in mind. For example:
- It is the responsibility of the individual to make an application to the EU Settlement Scheme. There is no requirement for the individual to inform you, as an employer, that they have applied or the outcome of their application. Likewise, you are not required to check that an employee has applied.
- You have a duty not to discriminate against EU citizens in light of the UK’s decision to leave the EU as both a prospective and current employer. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application.
- Current ‘right to work’ checks (e.g. passport and/or national identity card) apply until the end of 2020. EU citizens can also evidence their right to work using the online right to work service, if they choose to do so. However, they are under no obligation to demonstrate their right to work in this way.
- You will not be required to undertake retrospective checks on existing EU employees when the UK transitions to the future skills-based immigration system.
Driving in the EU
If your employees are required to drive in the EU for work purposes and possess a UK driving licence, they may face some additional obstacles. An International Driving Permit (IDP) will be necessary to drive in certain EU countries (such as France, Italy, Cyprus and Croatia) regardless of the duration of visit. There are three types of IDP, so make sure to check your employee obtains the correct one.
Drivers from EU countries will not need to carry an IDP when visiting the UK.
Much of the UK’s employment laws currently derive from EU Directives. The UK will continue to be bound by EU law until an agreement is reached or until the UK unilaterally withdraws from the EU.
Even after the exit date and/or transition period, these laws will continue to apply. At present the government has not stipulated any changes to EU derived domestic legislation in the sphere of employment. Employers should nonetheless be alert to any new proposals, particularly around the Working Time Regulations.
At present UK court decisions and employment tribunals may be appealed and heard within the EU’s courts. This will not be the case after the exit date/transition period. Appeals heard by the ECtHR will not be affected.