The UK officially left the EU at 11:00 pm on 31 January 2020. However, as part of the Withdrawal Agreement with the EU to help the UK transition away from EU membership, EU law continued to apply to the UK as if it were still a Member State until the end of 31 December 2020. On 24 December 2020, the EU and UK reached a Trade and Cooperation Agreement (TCA), which applies as of 1 January 2021.
The TCA includes reciprocal commitments by the UK and the EU not to reduce the level of protection for workers or fail to enforce employment rights in place as at 31 December 2020 in a manner that has an effect on trade or investment. In addition the UK government confirmed the final features of the UK's points-based immigration system in November 2020.
Set out below are the top 10 HR issues which employers should be looking at now that the UK is no longer part of the EU.
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Understand the new UK immigration system
This does not apply to Irish nationals, but anyone else coming to work in the UK from 1 January 2021 onwards, whether from the EEA or elsewhere in the world, will need to comply with one of the immigration routes provided for in the new rules.
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Assist employees to achieve settled and pre-settled status
Employees who are EEA nationals and who were living in the UK by the end of 2020 can apply for settled or pre-settled status, which gives them the right to carry on living and working in the UK. Employers should continue to communicate with such employees regularly and offer them support in achieving such status. The deadline for applications is 30 June 2021 for most applicants.
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Assess the effect of employee absences from the UK
Employers may need to assist EEA nationals who lived and worked in the UK before January 2021 to review their periods of absence from the UK. Absences of more than 6 months in any rolling 12-month period may break any period of continuous UK residency and may therefore impact an individual's ability to obtain settled status.
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Keep in touch with secondees
Employers with UK employees on secondment in the EU must keep up to date with any changes in the immigration requirements in each EU country where UK employees are seconded, and communicate those changes to the affected employees. Visas or local registrations may be required.
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Review employment policies
Employers should carry out an immigration audit, including drafting, reviewing and amending policies to ensure they are compliant with the new immigration system. In particular, inclusion and diversity policies should be considered, especially in relation to recruitment. Employers should think about whether there are discrimination implications in their approach to recruitment, such as a blanket policy that refuses to consider applications from candidates requiring a visa, or paying a higher salary to an applicant in order to meet the requirements of the sponsorship system.
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Check sponsor licence requirements
Employers who have not previously held a sponsor licence should consider whether such a licence is now needed. A licence may be required to employ both non-EEA nationals and newly arrived EEA nationals under the new immigration system. Employers who already have a sponsor licence should consider whether it needs to be amended to include the addition of any branches, subsidiaries or a new route.
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Consider using the intra-company transfer route
Multinational companies should look at whether they might use this route to transfer personnel to the UK. Applicants do not need to meet any English language requirements, but must satisfy specified criteria.
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Be familiar with the business visitor obligations
Employers who have EEA nationals who frequently visit the UK on business trips will need to understand the business visitor requirements for an intended visit from 1 January 2021. The new Frontier Worker permit will allow those who started to commute to work in the UK before 31 December 2020 to continue to do so (provided they meet the eligibility criteria) and the Business Visitor route will still allow limited activities to be carried out by a non-UK resident, including attending board meetings, signing contracts or undertaking a site visit.
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Be prepared for any relocation consequences
Consider the impact of relocating any business operations to the EU, such as consequential restructuring and redundancy plans, and associated consultation obligations.
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Keep a watching brief on UK employment rights
Currently the UK government is committed to preserving existing employment rights so there is nothing really for employers to do right now. However, the TCA allows for changes to existing rights in limited circumstances so employers should keep a watchful eye on this.
If you require further information or if you need tailored advice, please do get in touch with your usual Ashurst contact, or any of the people listed below.
