Brexit briefing: Understanding new employment laws

Kathryn Barnes, Employment Counsel EMEA, Globalization Partners, discusses the changes to UK employment laws as a result of Brexit

With a Brexit trade deal in place, attention has turned to the practicalities of implementing a wide range of legal, regulation and process changes. If that wasn’t challenging enough, the 11th-hour timing of the deal only served to add to the sense of uncertainty, and meant businesses on both sides were unable to make comprehensive preparations for life post-Brexit.

Among the many issues occupying the minds of organisations that trade with Europe, employment law has been of widespread concern. But with an agreement in place, it’s now vital to understand the changes and new rules that employers must follow. These include:

Changes to immigration rules

The UK now operates a new points-based immigration system, ending the UK’s adherence to EU-wide free movement of people. As a result, EU citizens no longer have the right to move to the UK to work and vice versa.

Adopting a points-based immigration system aims to treat EU and non-EU citizens equally by reducing the overall levels of migration and prioritising highly skilled employees, such as engineers and scientists.

To qualify for a skilled worker visa, employees who want to move to the UK must score a total of 70 points. The UK government guidance lists a range of criteria, from having a job offer in place and salary level to whether the job is in a ‘shortage occupation’ and if the applicant has a PhD. You can see a full list of the criteria and points here.

Overall costs and fees associated with sponsoring visa applicants has not changed dramatically, but sponsorship is expected to become more common now that free movement has ended.

Changes to freedom of movement – coming to the UK

Since January 1st this year, employees moving to the UK from any EU countries, such as Germany and the Netherlands, are required to go through the same immigration restrictions that already apply to citizens from further afield, such as those from India or China. However, the same rules do not apply to Irish citizens due to the pre-existing Common Travel Area arrangements.

In addition, European Economic Area (EEA) citizens who were already living in the UK by Dec. 31, 2020 need not go through this new system — on the condition that they apply to the EU Settlement Scheme (EUSS) by June 30, 2021. If their application under EUSS is successful, they will be allowed to remain, study, and work in the UK.

And just to be clear, the EEA is made up of the EU countries, plus Iceland, Liechtenstein and Norway, who are all part of the Single Market. Switzerland is not an EU or EEA member but is part of the single market, meaning Swiss nationals have the same rights to live and work in the UK as other EEA nationals.

In addition, EEA citizens who are living outside the UK can still come here for business or short trips, although they may have to justify their arrival at the UK border. Most visitors and employees can only carry out business meetings and attend conferences, but cannot legally “work” in the UK. Frequent visitors to the UK may come under the scrutiny of border officials, who have the right to ask their purpose and length of intended stay.

Changes to freedom of movement – going to the EU

There are equivalent changes for UK citizens travelling to the EU. The European Commission has said that UK nationals travelling to the European Union and Schengen Area will now be treated as third-country nationals, and therefore subjected to thorough checks at the borders when entering EU countries.

According to the Schengen Borders Code, UK nationals will not need visas to stay in EU countries for up to 90 days in any six month period, as long as they do not work. It is important for UK residents to check European country-specific rules and be aware of documents required for residency and employment.

Looking further ahead

The scale of the challenge ahead for organisations cannot be under-estimated and many will have a tough task ahead understanding the employment law implications and ensuring all the right paperwork is in place. Latest figures show that there are 1.3 million UK nationals living in EU countries – that’s a significant administrative burden for firms to tackle.

Even though employers and employees have been given a six month grace period up to June 30th 2021 to get their paperwork in order, what happens after that is not clear. It is likely that right to work checks will be carried out and EU citizens will need to satisfy the requirements – but nothing is confirmed. The only thing that’s clear is that many uncertainties remain.

For those non-UK based companies struggling to navigate Brexit’s choppy waters, and who can’t go down the points-based route to retain or hire talent in the UK, an Employer of Record (EOR) could be a port in the storm. It can also help employers manage hiring in EU/EEC countries without the need for relocation into the UK or without the company having to set up in other EU/EEC countries. This will ensure they have access to the highly skilled talent the business needs. Ultimately an EOR can help firms keep hold of their most important asset – their people.

Further help

The UK government’s online transition check can help produce a specific list of actions for both employers and employees, depending on their circumstances, status and requirements. This tool aims to help companies prepare for Brexit, particularly if they deal with personal data or employ EU nationals.