Brexit: practical five-point checklist for employers

Author: Qian Mou

As Theresa May rejects the idea of a points-based immigration scheme for EU workers, employers continue to face uncertainty as to the long-term impact of the Brexit vote on UK employment laws. We provide a practical checklist to help employers prepare for the UK's departure from the EU.

1. Develop a communication strategy on Brexit issues

Following the Brexit vote on 23 June, some employers wrote to their workforce to provide general information.

Although the implications of Brexit are still uncertain, employee communications can reassure workers that an organisation is taking their concerns seriously.

Employers should develop a communication strategy to provide workers with updates on Brexit as they occur, including any information relevant to the organisation's business or workforce.

The format will depend on the nature of the workplace and may include providing Q&A documents, holding group meetings, setting up an intranet page, providing an employee hotline or engaging in one-on-one meetings.

The content should be factual and not speculative; limiting information to known facts will avoid giving a false sense of certainty to employees, and help minimise confusion.

Employers should also avoid making political statements, which may alienate some employees.

A comprehensive communication strategy should also equip line managers to respond to staff questions about the impact of Brexit.

To prepare for resourcing implications following the UK's exit from the EU, employers should assess their current staff composition and recruitment needs.

Specifically, employers should look at the number of European Economic Area (EEA) staff in the UK and the roles or areas of the business such staff work in.

Employers should consider anticipated needs for such roles in the coming years and how they will be filled if mobility rules are changed for EEA workers.

Employers should also monitor the recruitment and retention rates of areas with high EEA staff numbers, to assess whether or not recruitment and retention strategies will be affected while the UK negotiates its departure from the EU.

Multinational employers will want to conduct the same exercise with UK employees working in the EEA.

However, employers need to ensure that they do not implement any recruitment or retention plans that could be considered discriminatory against EEA workers (see point five below).

3. Support EEA staff in the UK

Depending on workplace composition, employers may want to support EEA staff who will feel particularly vulnerable following the Brexit vote.

Employers can provide a range of support measures to these employees, including information on registration and residency rights.

For example, EEA workers and their family members can apply for registration certificates if they have lived in the UK for under five years, or for a document certifying permanent residence if they have lived in the UK for five years or more.

While these documents do not give EEA members additional rights in the UK, they may be useful if transitional rules are implemented for EEA nationals or to expedite future citizenship applications.

EEA workers who have lived in the UK for a long time may want to naturalise (become British citizens). They should check their EEA country's citizenship rules first, as some countries do not allow their citizens to hold multiple nationalities.

Employers with EEA employees in key roles can offer specialist immigration advice and support as a retention measure for these employees.

4. Be alert to harassment and other workplace incidents

Following the EU referendum, hate crime reporting rates have increased across the UK.

It is possible that such incidents will occur in the workplace, so employers are advised to be alert to reports of incidents involving discriminatory acts or harassment.

Brexit FAQs

What is the impact of Brexit on employment law?

What is the impact of Brexit on EU nationals already working in the UK before the end of the transition period?

Employers should promptly address any incidents through the usual disciplinary or grievance procedure; this will provide reassurance to employees and make clear that discriminatory or harassing behaviour is not tolerated in the workplace.

Employers may also remind employees of their workplace discrimination and harassment policies.

Where tensions at work will be higher than usual in the current political climate, employers need to be alert to incidents related to political and philosophical beliefs as well.

5. Avoid recruitment decisions based on speculation of EEA worker rights

Employers are not permitted to discriminate against employees or job candidates on the basis of nationality, including during the recruitment process.

This means that they should not consider an applicant's EEA nationality during the hiring process, except to check that he or she has the right to work in the UK.

Most EEA workers have the right to work in the UK without special permission and, although there has been much speculation, there has not been any change to these rights.

Therefore, any less favourable treatment of a job candidate because of his or her EEA nationality could be considered discriminatory.

Employers should also ensure that they do not treat current employees unfavourably due to EEA nationality, for example when considering employees for renewal of fixed-term contracts, promotions, assignments or allocation of shifts.