By Jill Evans, Law Content Analyst
While the political maelstrom continues to surround Brexit, practical aspects, such as how organisations will operate after the UK leaves the EU, don’t grab the headlines often enough. It’s still unclear, for example, what will happen to the laws governing employment and labour movement once the UK leaves the EU. But at least we now have the long-awaited report from the Migration Advisory Committee (MAC), commissioned by the Government, and intended to advise it on immigration policy post-Brexit. A government white paper on immigration is due in October.
Assuming free movement of EU nationals ends post-Brexit (which can’t be guaranteed) the MAC report suggests the UK’s current Points Based System for immigration should be extended to cover EU migrants and altered so that more skilled than lower-skilled workers gain permits to work here. The Tier 2 (General) category would lose its cap on the number of permits issued, and would be widened to include medium as well as highly skilled workers. The £30,000 salary threshold for this category would remain, as would the immigration skills charge of £1,000 per worker. More occupations (an extra 142) would be eligible for this type of sponsorship, and employers would not have to advertise non-shortage occupation roles domestically for 28 days before offering the job to a foreign worker.
Only the agricultural sector would be given its own scheme to enable lower-skilled workers to come and work here. Employer groups are already expressing concern that the MAC recommendations won’t help labour shortages in the retail, hospitality, health and social care sectors without further reforms to the system.
We don’t yet know what a Brexit deal will look like – and can’t even be sure we’ll have one – but assuming a ‘withdrawal agreement’ is reached, there will be a transitional period from 29 March 2019 until 31 December 2020, during which the free movement of EU nationals will remain in place while the UK and EU work out what happens on labour mobility. If there’s no deal, there’s no transitional period, free movement ends and the government would need to have its immigration arrangements in place to allow EU migrants to enter the country. In this situation, intra-company transfers across EU borders would be governed by the rules of each individual member state.
The picture for EU nationals already working in the UK is clearer. They can apply to remain here indefinitely (called ‘settled status’) if they have been here for five years, or will have been by the end of 2020. Those that have been here for fewer than five years by that time can apply for pre-settled status, so they can accrue the necessary years to qualify for full settled status.
It will be down to Parliament to decide, post-Brexit, whether our employment protection laws continue as they are. The European Union (Withdrawal) Act 2018 ensures that both UK law stemming from Europe, like Tupe and the working time regulations, will continue to apply, as well as EU laws with direct effect, like the General Data Protection Regulation. Areas ripe for reform post-Brexit could include discrimination compensation (currently uncapped), harmonising terms and conditions after a Tupe transfer, holiday accrual and pay, and the agency workers regulations.
However, a future trade deal with the EU is likely to be dependent on established principles of employment protection, and the government proposed in a white paper in July that the UK and EU should commit to the “non-regression of employment law standards”. CIPD research on employment regulation shows that employers probably wouldn’t want major changes to employment law post-Brexit, in any case.
But employers’ appetite for reform could be entirely different if they find themselves dealing with an already complicated and over-restrictive immigration system more generally applied, if and when free movement ends.
