The UK will leave the European Union (EU) at 11.00pm (UK time) today and while there has been much debate about how such an historic event will be marked, many employers will be wondering what happens next.

The simple answer is nothing. Yet.

Following Brexit the UK will enter a transitional period which will last until the end of 2020. During this time the UK will continue to comply with EU law, which from an employer's perspective means that:

  • EU free movement rules will continue until 31 December 2020
  • there will be no changes to the Right of Work checks employers conduct on EU, European Economic Area (EEA) and Swiss nationals and their family members until 1 January 2021
  • EU, EEA and Swiss nationals (and their non-EEA family members) resident in the UK by 31 December 2020 will be eligible to apply for settled or pre-settled status under the EU Settlement Scheme (EUSS)
  • the deadline for applications to the EUSS is 30 June 2021

The government plans to introduce a new immigration system that will come into force as the transitional period ends. The Migration Advisory Committee published a report this week on minimum salary levels and how the UK might learn from points-based immigration systems in other countries which the government will consider when designing their new system. We expect the government's plans to be published in March.

In the meantime, recruitment activity this year will be largely unaffected by Brexit, except for those situations where new employees will not start work for you until 2021, in which case anyone who is not a British or Irish citizen will need to prove that they have been granted immigration permission to work in the UK. For EU, EEA and Swiss nationals this might be status under the EUSS, but for those who arrive in the UK from 1 January 2021, they will be subject to the new immigration system along with the rest of the world.

What Do I Do Now?

Although there is no requirement to do so, it is best practice for employers to inform employees about the EU Settlement Scheme to ensure maximum awareness that some people will need to make an application in order to continue living in the UK.

The government's Employer Toolkit has been specially designed for employers who want to provide information to their employees about the EUSS. The Toolkit contains leaflets, briefing packs and factsheets to help employers communicate accurate information on the EUSS to their employees and can be either circulated electronically or printed out and placed in communal workplaces.

Additional information that might be worth circulating to employees can be found on the government's website including a link to the EUSS application form.

You may have employees who do not need to apply themselves, but have family members who will need to apply, so we suggest circulating this information to all members of staff.

Conduct an Audit of Your Workforce

The difficulties which employers will face if existing members of staff are no longer able to work do not need spelling out here. For those employers who have not already done so, we recommend conducting an audit of your workforce to identify those members of staff who are EU, EEA and Swiss nationals. To ensure that those who need to apply do so, we would recommend asking members of staff to provide you with confirmation that they have been granted status under the EUSS. You can then update your records and - as the deadline approaches - remind employees who have not applied of the requirement to do so. That way you can have some comfort that there will be minimal disruption to the workforce as 2021 approaches.

We have advised many employers on the most appropriate way of conducting such a review and communication exercise in ways which do not fall foul of any accusations of discrimination or victimisation.

Think About Your Future Requirements

From the MAC's report and what the government has told us so far, it seems likely that employer sponsorship - similar to the current Tier 2 immigration arrangements - will continue to form the backbone of the UK's work visa routes. Employers without a sponsor licence may wish to consider applying for one now, particularly those who are likely to continue recruiting EU nationals in the future. For those employers with a Tier 2 licence, we recommend reviewing current compliance to ensure that their licence is not at risk and that it can continue to be used when the new immigration system comes into force.