Currently employers can recruit staff from the EU countries (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden) with no problems. EU nationals still have the right of free movement to live and work in the UK. So do those from the European Economic Area (Iceland, Liechtenstein, Norway) and Switzerland.
However, nobody knows (see our other article for some shameless speculation) what will happen to this area of employment law after Brexit – this is part of the exit negotiations. Commentators think it is likely that Britain will have to continue to accept foreign workers in return for not paying import duties on goods sold to the EU. No doubt there will be tweaks, but these are up in the air for now. Farmers who rely on Poles and Lithuanians wait anxiously. We have employer clients who rely on Eastern European programming labour, for example.
There is certainly a risk that that EU workers will not be able to come here to work once Brexit is finalised. There is even a risk that that existing workers will have to return home. Anecdotally we have heard of EU staff returning now because they feel unwelcome after the vote.
Remember that some EU nationals may also have dual nationality or a right to remain because they will have lived here for long enough already by ‘B-day’.
The negotiation process is likely to take the full two years allowed by EU law. This is basically a negotiation not about the exit but about the relationship after the exit.
What not to do
Some employers will want to avoid employing EU nationals now, at least in longer-term roles (that is non-seasonal ones). Otherwise they may have to deal with disruption in 2019 when employment law in this area will change.
The problem with this approach is the risk of discrimination claims. Employment law permits an employer to refuse to hire an individual who doesn’t have the right to work in the UK. However, refusing to hire a person because he or she might not have a right to work in the UK at some point in the future is a very different prospect.
Next steps for employees
Some employees may be able to obtain a right to remain in the UK now. Those who have five years of residence or a year of permanent residence might future-proof their ability to work here by applying to change their status.
Next steps for employers
If employers wish to future-proof their businesses, they should not simply refuse to recruit EU nationals yet. This would be unlawful as direct discrimination on grounds of nationality.
If the role is really part of a long-term project (that is, longer than two years), an employer could adopt a policy of not hiring anyone without indefinite right to remain and work in the UK. This would need to be genuine and justifiable; this involves weighing up the possible disruption of losing them, the longevity of other staff in the role.
This uses the law on so-called ‘indirect discrimination’. The legal test is whether the policy is a ‘proportionate means’ of achieving a ‘legitimate aim’. This means is it no harsher than absolutely necessary when you’ve weighed up the interests of the employee and employer. It’s a fairly tough test generally and there’s no caselaw on it in a Brexit context yet. However, it will often be worth an employer chancing it when it considers the likely risk of a claim and amount of compensation. It would be much safer to wait for the negotiations to progress, because once the new rules are in place there is less speculation on the ‘interests of the employer’ side of the equation.
Do contracts need to be amended?
No. There is no need to amend any employment contracts. If staff are not permitted to remain/work in the UK after Brexit, they can be dismissed fairly and without race discrimination under employment law, whatever an out-of-date contract says.
We will of course keep you updated.
Part of our Brexit series.