What should we be doing in preparation for Brexit?

From a law perspective, it’s been quite easy to almost ignore what’s dominating the news and politics.  Brexit is at least immediately unlikely to have much impact in terms on our everyday functioning in HR.  The European Union (Withdrawal) Act 2018 received Parliamentary approval recently: this is legislation that repeals the European Communities Act 1972 and preserves the effect of all EU law as it stands at the point of the UK’s exit from the EU on 29th March 2019, so that we retain a functioning statutory framework.  The Act created powers for the government to make secondary legislation to remedy any deficiencies in the retained EU law, for example, something that will have no practical application following withdrawal may need to be edited out.  Those powers are not intended to allow ministers to make substantive changes, so we shouldn’t see immediate changes.

Whilst there have been commentators laying bets on areas for reform in the long long term (common candidates being loosening up of the ability to perhaps change terms & conditions following a TUPE transfer, abolition of the Agency Workers Regs, capping compensation for discrimination under the Equality Act 2010, removing the 48-hour limit on weekly working hours and altering case law on holiday rights whilst off sick under the Working Time Regulations 1998) quite frankly Parliament has bigger fish to fry in the immediate aftermath of Brexit.  So, it is likely to be a considerable amount of time before we start seeing any of these sorts of changes.  We are also used to the law changing back and forth perhaps as cases go through the different stages of the courts, so to your average HR person it’s all a normal day’s work.

The one area where we have taken our current law for granted is the area of immigration.

The response to the Home Affairs Select Committee report on the delivery of Brexit, published in May 2018, suggests that an EU citizens’ rights to remain and work here will depend largely on when they arrived.  There will be an implementation period from 29th March 2019 to 31st December 2020 (this window could be extended). If by the end of that period somebody has lawfully resided here for 5-years it looks as though they’re going to be able to stay and of course work here indefinitely under something that’s going to be called the EU Exit Settlement scheme.  For those who have less than the 5-years at that crucial point; they will have temporary status until they’ve been here for the requisite 5-years, when they will then obtain settled status and be able to continue working in the same way.

Thus far we don’t have any official statement on people who come here after the end of the implementation period – further publication is expected in the Autumn.  The paper that was leaked in September suggested the thinking was along the lines of tougher obstacles to work here for all but the highest of skilled candidates. It could be that any new citizen coming here would have to demonstrate proof that they have a job offer before they arrive, and that work visas might be limited to for example, 2-years unless the person has a contract lasting for longer.

At its most basic, we’re going to have to get used to the complexity around checking who has the right to work here and the risk for employers of getting the checks wrong and inadvertently making mistakes.  Recently there was a case, see http://refreshinglawltd.co.uk/2018/07/the-value-of-the-appeal/, and whilst in that case the employer can easily be mocked for an obvious error on their part, the case arose out of a situation where the employer was unfamiliar with the rules, and you can easily see how somebody might make an error post Brexit when everything is more complex.