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How Employers and Employees Can Prepare For A Possible Brexit

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- By Teni Shahiean of OTS Solicitors

Nothing damages business confidence like uncertainty. And the EU In or Out Referendum is making employers understandably nervous. They want to know the steps to take to secure the residency of talented employees in the event of Britain leaving the EU and how employment law, much of which derives from Brussels, will be affected.

Protecting investment in skilled labour

Research shows EEA migrants contribute around £5 billion to the UK economy. According to a research paper on the impacts of migrant workers on UK businesses:

“Skills held by migrant workers allowed businesses to expand their workforce, to fulfil existing contracts and also to take on more work. The larger talent pool was found to increase the quality of staff. Some also reported more unexpected benefits resulting from migrants’ skills, including the winning of new business and improved performance from workers”.

By gaining permanent residency as a qualified person, EEA migrants can solidify their Immigration status, regardless of the referendum outcome. Employers whose workforce comprises of workers from the EEA need to inform employees of the process, through training programs and staff communication.

The definition of a ‘qualified person’

All EEA nationals have an initial right to reside in the UK for up to three months. After this, they can only remain if they are a ‘qualified person’ as defined regulations 4, 5 and 6 of The Immigration (European Economic Area) Regulations.

Qualified persons are defined as:

  • job seekers
  • workers
  • self-employed persons
  • students with comprehensive sickness insurance
  • the economically self-sufficient with comprehensive sickness insurance

The rights of EEA workers

Aside from Croatians, all EU nationals have the right to live and work in the UK as long as they are exercising Treaty rights. Part-time work can qualify, if it is deemed ‘genuine and effective’.

Registration Certificates

EEA nationals can formalise their right to work in the UK by obtaining a Registration Certificate. Although this is not required, with the uncertainty surrounding the Immigration status of workers from the EEA due to the upcoming referendum, this is a way for employees to confirm their right to live and work in the country.

To apply for a Registration Certificate, an employee will need to show evidence of:

  • their EEA nationality; and
  • that they are exercising their Treaty rights; ie they are in Employment

The downside to a Registration Certificate, which is normally issued for five years, is it is not a legal document, it serves only for administration purposes. This leaves a question mark over how effective having one would be in the event of a Brexit.

permanent residence

By obtaining a permanent residence (PR) card, EU nationals can further solidify their Immigration status, giving their employers peace of mind. A PR card is now required before British Citizenship can be applied for.

A PR card merely confirms the free movement Treaty rights that already apply to EU nationals. It does not add any further advantages. However, I have found that the Home Office will take into account whether or not a person has acquired PR in cases where they are facing deportation.

With the current uncertainty surrounding a possible Brexit, employees in possession of a PR card can easily evidence their right to work in the UK. It would be highly unlikely that any Government would retrospectively revoke the rights of people who have permanent residency in a country; the international outcry would be deafening.

To apply for a PR card, employees must have lived in the UK for five years. There is a fee of £65 and the applicant must fill in the 85 page long EEA (PR) form.

British Citizenship

The ultimate level of protection is obtaining British Citizenship. EEA nationals can apply if they meet the following criteria:

  • They are aged 18 or over
  • They are of sound mind & good character
  • They intend to continue living in the UK
  • They have sufficient knowledge of life in the UK
  • They are able to acceptably communicate in English, Welsh or Scottish Gaelic
  • They have held a PR card for 12 months
  • They have not been outside the UK for more than 450 days during their five-year stay

If your employee has any previous convictions this may affect their application for citizenship.

Employment law – will anything change?

A large amount of UK employment law is derived from EU directives. These include; discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations including the right to paid holiday and duties to agency workers.

Large-scale change is unlikely to take place if the ‘Leave’ campaign is successful for two reasons:

  1. To maintain its position in the EU market, (its biggest trading partner) Britain will have to negotiate a similar agreement to what is now in place. The price of an agreement is likely to be an adherence to certain labour laws and social protections.
  2. Employee protections such as maternity leave, holiday pay and anti-discrimination laws have become an expected part of Britain’s progressive society. A Government may tinker around the edges of particular laws, for example, placing a cap on compensation available for discrimination, but it will not revoke them outright.

The UK has the most un-regulated labour market in the EU. For example, the Britain is the only country that allows employees to ‘opt-out’ of the 48-hour Working Time Directive.

Besides, most of the employment law employers baulk at have been implemented by the Conservative Party not by Brussels. These include:

  • the Living Wage
  • the Apprenticeship Levy
  • restrictions on skilled migrant workers
  • publication of gender pay gaps

Since the introduction of fees to bring a claim in the Employment Tribunal, the number of actions brought by employees has dropped around 70 percent.

Taking these factors together, I believe it is safe for employers to assume that changes to employment law will be negligible. British employment law has already moved significantly to advantage employers. Therefore, the focus of the business community should be on cementing the Immigration status of skilled EEA nationals within the workforce.

Replacing an average employee is difficult enough. Attracting talented, dynamic recruits is expensive and like finding a needle in a haystack. Helping existing EEA staff solidify their right to work in the UK will always be a cheaper, easier option.

OTS Solicitors specialises in Employment and Immigration law. Based in London, our expert team of Solicitors are committed to delivering the best results for our Employment and Immigration clients. If you wish to receive legal advice on any of the points raised in this article, please phone our office on 0203 959 9123 to make an appointment.

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