Brexit: What now for HR?

• A recording of this webinar and the

accompanying slides will be made available within a week of this event

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Agenda

• Process of leaving the EU

• Impact of EU law

• Exit options and changes to employment law

• Influence of ECJ

• Implications for non-UK EEA nationals

• Challenges for HR

Speakers

Leaving the EU

• Notification under art.50 (do we need

Parliament to agree?)

• Two-year default period

• Repeal of European Communities Act 1972

(what if MPs refuse?)

• Repeal certain to have “saving provision”

-laws passed under it will continue to be valid

• Then process starts of amending laws

Imposed by Brussels?

• Easy to forget that UK has been a part of decision-making process (hitherto)

• UK employment law has a complicated relationship with EU, eg Equality Act

• EU rights are a floor; some UK rights go beyond what is required, eg maternity leave and paid holiday

• Plenty of UK employment law nothing to do with EU, eg unfair dismissal, minimum wage, shared parental leave and right to request flexible working

• Plenty of EU employment law has limited impact, eg ICE Regulations

The Norwegian option

• Membership of European Free Trade

Association and application of Agreement on European Economic Area

• Employment law from Europe would continue

to apply

• EFTA court relies on case law from ECJ

• Changes to EU employment law are applied

automatically

• Members do not participate in legislative

The Swiss option

• No overarching agreement

• Multiple bilateral deals

• In practice, free movement and employment

law continue to apply

• New laws are added to agreements on a

Likely targets

• Unlikely that employment law will be an

immediate priority

• But watch for:

• cap on compensation in discrimination claims

• changing terms post TUPE

• repeal of Agency Workers Regulations

Case law

• How to calculate holiday pay:

• Lock v British Gas Trading Ltd (judgment awaited)

- key issue is effect of ECJ decisions on UK courts

• The scope of indirect discrimination:

• Supreme Court due to consider whether claimant needs to show the same reason for the

disadvantage as the group suffers

• The meaning of disability:

• Medical model in Equality Act challenged by social model approach of ECJ

A continuing influence?

• Laws will remain that have EU origins

• They were intended to implement EU

Directives

• Courts might think that case law of ECJ

continues to have influence

• May even apply to ongoing cases - though we

In the meantime…

• We are still members of the EU, and likely to

be so for some time

• All the normal rules continue to apply

• Future of immigration law may be in doubt,

but watch for risk of race discrimination

• Will be unlawful to treat foreign nationals less

favourably because of your concerns of post-Brexit rules

Brexit: immigration implications

• Just over 2 million EU nationals working in

the UK

• Just over 1 million British nationals living in

the rest of the EU

• No change in the short to medium term

• No detailed future immigration policy as

Brexit: current position

• Free Movement Directive (2004/38 EC)

transposed into UK law via Immigration

(European Economic Area) Regulations 2006

• Home Office statement on 11 July 2016:

“When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected”

Brexit: some “best-guesses”

• Likely that EEA nationals with a right of permanent

residence before Brexit will be able to stay

• There may be transitional provisions for EEA

nationals with less than 5 years to move to a new points-based system. This may require proof of “qualified person” status (eg worker,

self-employed, self-sufficient and student) at a given point, but when?

• Possible restrictions on “new” EEA immigration to

Brexit: what can EEA staff in UK do now? (1)

• Apply for a document certifying permanent

residence:

• For those continuously resident in the UK

as a qualified person for at least the last 5 years

• Applications can take up to 6 months to

process

• No requirement to obtain document, BUT

• Apply for a registration certificate:

• For those with less than 5 years in the UK

or who cannot otherwise qualify for permanent residence

• Not essential, BUT provides evidence of

status in the UK as a qualified person at a given time

• Does not guarantee permanent residence

after 5 years

• Apply to naturalise as a British citizen:

• For those who:

• have lived continuously and lawfully in the UK for at least 6 years; and

• hold a document certifying permanent residence status

• Check that existing nationality can be

retained

Brexit: what about UK staff in the EEA?

• Similar uncertainty but no immediate change

• UK may enter into bilateral agreements with

individual EEA members to provide reciprocal protection for each other’s migrants

• Individual EEA member states may retaliate

Brexit: key challenges for HR

• Uncertainty

• Skills shortages as a result of:

• recruitment freezes

• loss of existing EEA staff from the UK

• difficulty recruiting staff from EEA

Brexit: how else to prepare? (1)

• Remain calm and reassure staff

• Ensure joined-up communication

• Set up Brexit “taskforce” including members

from other parts of the business, as part of which HR might be charged with:

• collating data on current EEA population in

the UK and UK employees in the EEA

• monitoring impact on talent and planning

Brexit: how else to prepare? (2)

• anticipating costs (likely that post-Brexit

immigration from EEA to UK will be significantly more expensive)

• anticipating new post-Brexit points-based

Q&A

resources

• Employee communication letter following the

EU referendum:

bit.ly/xperthr-employee-brexit-letter

• How to apply for a sponsor licence:

bit.ly/xperthr-how-to-apply-for-a-sponsor-license

• How to retain a sponsor licence:

bit.ly/xperthr-how-to-retain-a-sponsor-license