Immigration and migrant labour were central to the EU referendum debate. Although we can’t yet predict how the Brexit negotiations will pan out, here is our advice on what employers can, and cannot, do at this stage with regards to EEA workers, and some practical guidance to help you plan for what might lie ahead.

If you have any additional questions, please get in touch with our employment team or your usual Brodies contact.

1    We employ EEA nationals – what should we be doing?

For EEA/Swiss nationals working in the UK, nothing changes immediately from a legal perspective. The UK is still a member of the EU for now, and free movement rights still apply to these workers.

At the point of Brexit, at one end of the spectrum of options, if the UK accepts the principle of free movement of workers as part of any overall agreement with the EU, nothing will change.

But many ‘Leave’ campaigners advocated tighter controls on EU immigration, with talk of a points-based system. There may be some form of ‘amnesty’ for those already working here, but it is possible that EEA nationals, especially those arriving between now and the exit date, will not have an automatic right to live and work in the UK.

Some immediate practical steps you can take are:

  • Identify who is affected.
  • Reassure them that they can continue to live and work in the UK for the time being.
  • Consider how you will keep track of affected individuals, and communicate with them as the position becomes clearer.
  • Take steps to prevent discriminatory ‘banter’ in the workplace – more on this below.
  • Ensure job offers are subject to an individual’s right to work in the UK.
  • Ensure contracts of employment include an immigration warranty (so employees warrant that they are entitled to work in the UK and will inform you if this changes).
  • Consider alerting affected workers (especially those in key posts) to possible options for securing their ongoing right to work in the UK – more on this below.
  • Consider the impact on your business if the current UK points-based system is rolled out to EEA/Swiss nationals – more on this below.
  • Consider how would you fill any gap created by the absence of EEA workers if they are ultimately unable to remain.

2 Is there an increased risk of discriminatory ‘banter’ at work?

Employers who don’t take reasonable steps to prevent discriminatory ‘banter’ at work risk being found liable for the actions of their employees at an employment tribunal.

Consider whether the Brexit vote has increased the risk of race discrimination against EEA workers in your workplace, perhaps in the form of harassment or discriminatory ‘banter’ from colleagues.

In some circumstances an individual could also have a discrimination claim (under religion/belief discrimination provisions) if they are treated less favourably or harassed because of a strong belief in ‘Leave’ or ‘Remain’.

Our previous blog highlighted some practical steps to help prevent this type of behaviour. It might also be worth reviewing and/or recirculating your social media policy to ensure your employees are clear that, for example, posting inappropriate comments about colleagues on social media could lead to disciplinary action.

3 Can we put a stop on the recruitment of EEA/Swiss workers?

At this point, the UK remains a member of the EU, and free movement rights still apply to workers from the EEA/Switzerland.

If you refuse to consider EEA/Swiss applicants simply because of their nationality, you will be liable for race discrimination.

If, rather than imposing a blanket ban on all EEA/Swiss nationals, you reject all applicants who are subject to immigration controls (or who might be subject to immigration controls in the future) you would still be at risk of a discrimination claim, although you may be able to defend this if you can justify your course of action. Given the narrow range of situations in which such a defence would be available, we would recommend that you take legal advice before going down this road.

In general, you can find useful guidance on recruiting workers from abroad in the government’s Code of Practice for Employers: Avoiding unlawful discrimination while preventing illegal working.

4 Can we dismiss EEA/Swiss workers, or offer them different terms and conditions, in light of the Brexit vote?

You will be liable for race discrimination if, simply because of their nationality, you:

  • Dismiss EEA/Swiss workers or select them for redundancy in preference to UK workers;
  • Refuse to consider EEA/Swiss workers for promotion; or
  • Offer EEA/Swiss workers less favourable terms than UK workers, for example only offering fixed-term contracts, having shorter notice provisions, offering reduced benefits or reduced training opportunities.

However, as described in the last answer, if your reason for acting in this way was not simply an individual’s nationality, but because they might be subject to immigration controls in the future, there may be some limited scope for defending a discrimination claim, but we would recommend that you take legal advice in advance of such steps.

5 If EEA/Swiss workers lose their right to work in the UK, will we be able to dismiss them?

Employing someone who does not have the right to work in the UK carries significant risks including a fine of up to £20,000 per illegal employee and imprisonment; but (perhaps surprisingly) this does not mean that it is automatically fair to dismiss: to avoid an unfair dismissal claim you still need to follow a fair procedure and act fairly and reasonably overall.

If the outcome of Brexit negotiations makes it likely that some businesses will find themselves in this position, we will circulate advice on managing the dismissal process.

6 What are the options for EEA/Swiss nationals who want to secure their right to work in the UK post-Brexit?

EEA/Swiss nationals hoping to secure their right to work post-Brexit should obtain advice on the options available to them based on their individual circumstances, but here is some general guidance:

British citizenship:

Becoming a British citizen will secure an individual’s right to continue living and working in the UK, and we discuss the criteria for this in our Guide to British Citizenship.

Permanent residence:

EEA/Swiss nationals who have been working, studying or supporting themselves independently in the UK for a continuous period of five years may have acquired permanent residence.

Although not essential to prove their current right to work, it may be useful for individuals to apply for a document certifying their permanent residence status (and this is a necessary step before applying for British citizenship). It appears likely that EEA/Swiss nationals with a right to permanent residence will be able to stay in the UK post-Brexit (as per the government’s statement and indications from the Home Office) but there can probably be no absolute guarantee until we know the outcome of negotiations.

Registration certificate:

Those who have lived in the UK for less than five years can apply for a registration certificate confirming they are entitled to work in the UK. However, this is not essential to prove their current right to work (other than for Croatian employees) and doesn’t guarantee that individuals will be able to continue working in the UK post-Brexit.

7 What if the UK points-based system is extended to EEA/Swiss nationals?

At this stage, we don’t know what future restrictions might apply to EEA/Swiss workers. However, it may be useful to consider key aspects of the current UK points-based system for non-EEA workers that could impact on your business if this is rolled out:

  • Employers need a sponsorship licence before employing non-EEA migrants: there are certain administrative requirements and a fee to be paid.
  • Although skilled workers can gain entry if there is a shortage, entry is currently closed to low-skilled workers: roles to be filled by migrants must meet minimum criteria for skills and salary, and employers need to show there are no suitable UK workers who could perform the job.
  • The government intends to introduce an ‘immigration skills charge’ of £1,000 per migrant worker from April 2017 (with a reduced rate for smaller businesses) – will this be extended to EEA/Swiss nationals in the event of Brexit?
  • The consequences for employers of ‘getting it wrong’ as regards an individual’s right to work in the UK are potentially very serious, including fines of up to £20,000 and imprisonment. Previously, it was a criminal offence to ‘knowingly’ employ an illegal worker, but this has now been widened so that it applies where an employer has ‘reasonable cause to believe’ that a person is an illegal worker. Businesses can also be ‘named and shamed’ leading to negative publicity.

8 We have UK workers based elsewhere in the EEA – is there anything we should be doing?

Although there is no immediate change to the rights of UK citizens to work in other EU countries, depending on the outcome of negotiations, they might not enjoy their current free movement rights post-Brexit.

In terms of forward-planning:

  • Identify individuals who might be affected.
  • Consider your long-term needs as regards transferring staff to other EEA countries.
  • Review the current immigration rules for non-EEA nationals in countries where your workers are based – consider the impact of these rules being applied to UK workers in the future.
  • Would any key workers consider taking steps to protect their right to continue working in a particular country, perhaps by applying for citizenship?
  • If your UK workers are unable to continue in their posts after an EU exit, how would you fill those posts and what steps would you need to take as regards the individual workers?
  • Will relevant qualifications of UK workers continue to be recognised in the EU?
  • Secondments to other EU countries pre-Brexit will need to take account of the potential for change, and secondees might insist on additional reassurances before agreeing to a move, such as a commitment to redeployment if they need to return to the UK.