Prepare for the Worst, Hope for the “not too bad”

This week’s parliamentary shenanigans have left the possibility of a “No Deal” Brexit very much on the cards – despite repeated statements from politicians of all sides that No Deal is not what they want.

Given that there is – at the time of writing – only two months to 29 March, the date on which the UK is due to leave, small businesses should be taking steps now to prepare for the worst-case scenario. In HR and employment terms some of the common queries I have had are:

1.       Can I still employ existing staff who come from the EU?

Yes, you can, although they will – after 29 March – need to apply to the Home Office for what is called ‘Settled Status’. Information on the process is available here.  You can continue to employ them while they go through the process. The official Government position – for what it is worth – is that unless there is a specific reason to deny settled status (e.g. criminal convictions) it will be granted.

If there is a deal, they will still have to apply for settled status but have up to 31 December 2020 to make their application.

People who have been in the UK for less than 5 years may only be allowed to apply for “Pre-Settled Status”. You will still be able to continue to employ them provided they have applied for,  and then been granted this.

2.      Can I recruit people from the EU after 29 March?

If there is a deal (with a transitional period) then yes. But if there’s no deal, then the situation is very unclear.

The worst-case situation is that new recruits from EU countries will need to meet the same or similar criteria to workers from other countries. This will mean applying for work visas (the new name for work permits) and registering your company as a sponsor organisation. This is a long-winded and convoluted procedure which many small firms have avoided in the past precisely for that reason. There are proposals to change the system, but they haven’t as yet been agreed or implemented.

If your business uses short-term ‘low skill’ labour (e.g. seasonal agricultural or hospitality staff) then there are proposals to implement a scheme of 12-month visas which will allow people to work in the UK temporarily. Again however it needs to be stressed that these are still only proposals.

Whatever system is put in place, employers will still be expected to carry out the normal “right to work” checks before employing someone.

3.     What if supplies are disrupted – can we lay staff off temporarily?

It depends – read my full post on this issue here.

4.    What about existing staff who need to travel to EU countries for work?

If there is a no-deal, the EU has said that people from the UK should not need a visa to travel to EU countries for short holidays or business trips. They will however need to apply for an ETIAS “visa waiver” document (similar to the ESTA scheme operated by the USA) every 3 years.

If you have business trips planned at the end of March or early April, there is the possibility of flight disruption.

If you have staff driving in Europe – whether this is for business trips or delivering freight –  you will have to make sure that all drivers carry a “Green Card” to show they have insurance. As this can take a month to process, you will need to apply by the end of February at the latest.

It’s also likely that in a no-deal situation, the EHIC card – which allows people to receive free health service treatment in any EU country – will no longer apply to UK citizens. So you will need to make sure that you have adequate health insurance for any employees travelling outside the UK.

The situation is extremely fluid at the moment. Although the information is correct at the time of publication, it may not be in a day or so. Keep an eye out for future posts. If you have a Brexit-related HR or employment question that isn’t covered here, please get in touch