Brexit Update: Settlement Statuses and Other Employment Rights

With just nine months remaining until the UK formally exits the EU, it is still very difficult to predict where Brexit will be heading, and therefore it is problematic for employers to know how they should be supporting their employees. However, it is clear that the first aspect to get on top of is the introduction and application of the EU Settlement Scheme, or settlement statuses.

Settlement Status

EU citizens working in the UK will have the opportunity to apply for a settlement status, which operates similarly to a residence status. The first key point to note is that this will not take effect until 31 December 2020 (or at the end of the transition, or implementation period, should this be extended), meaning that until that date, free movement of people will continue in the UK even though the official date of Brexit is 29 March 2019. EU citizens who arrive during that period (29 March 2019 – 31 December 2020) will still be able to apply for the obligatory ‘settled’ status document if they have lived here continuously for five years.

Essentially, the applicant must satisfy three requirements alongside their application, these are:

  • Proof of identity;
  • Proof of eligibility (whether the applicant is a resident of the UK or a family member of an EU resident in the UK);
  • Proof of suitability (criminal background check).
  • An applicant must have been a resident of the UK, or a family member of an EU citizen who has been a resident in the UK, for 5 years by the time of 31 December 2020. If this is satisfied then they will be able to apply for settled status.

Pre-settled status is for EU citizens and family who have not lived in the UK for five years by 31 December 2020. They can continue to live in the UK until they reach the five years, and then apply to change their pre-settled to settled status for no fee.

It is advisable for employees to gather their own supporting evidence to aid the process, even though the burden rests with the Government to prove settlement status.

The Government has published a useful toolkit for employers to help them inform their workforce on settlement statuses. The applications for settlement status are due to open in the autumn of 2018. If your company has an employee or number of employees who may be seeking settlement status, you can support them by providing informative correspondence alerting them to the updates and signposting the relevant material from the Government website. This may take the form of publication on an internal intranet site, printed leaflets available from HR, or internal email communication.

Key points to be aware of:

  • Current ‘right to work’ checks apply until the end of 2020.
  • You are not expected to pay/support the cost of the EU Settlement Scheme application for your EU citizen employees. You are welcome to do so at your discretion.
  • There is no legal obligation for you to communicate the EU Settlement Scheme, however signposting the Government’s information on this is good HR practice.
  • You do not have to interpret information provided by the Government and you must be careful not to provide immigration advice.
  • ‘No Deal’ Brexit

Over the past couple of weeks, the Government has started publishing communications on the possibility of a ‘no deal’ Brexit. On 23 August 2018, the first 25 in a series of technical notices, which aim to provide guidance and information for UK businesses and citizens on how to prepare for no deal (no-deal notices), were released.

Regardless, workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law since domestic legislation already exceeds EU-required levels of employment protections. The Government will make small amendments to the language employment legislation, such as the Employment Rights Act, to reflect the UK is no longer an EU country. These amendments will not change existing policy.

With regards to employer insolvency, in a ‘no-deal’ scenario, people living and working in the UK for a UK or EU employer will continue to be protected under the UK legislation and will still be able to bring forward claims in the same way that they can currently.

UK and EU employees that work outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that country. However, this may not always be the case, as there are variations in how each EU country has implemented the guarantee required by EU law.

There are implications for UK businesses and trade unions with regards to their European Works Council agreements, these will be amended so that:

  • no new requests to set up a European Works Council or Information and Consultation procedure can be made;
  • provisions relevant to the ongoing operation of existing European Works Councils will remain in force;
  • requests for information or to establish European Works Councils or Information and Consultation procedures made before EU exit but not completed by EU exit will be allowed to complete.

In respect of preparations for a no-deal Brexit, it is advisable to keep an active eye on the progress of the Government’s negotiations with the EU. It is very difficult to predict where Brexit is heading, and it has been advised that the guidance on a no-deal Brexit has been published more for information, rather than as a prediction to the outcome of May 2019. However, this may all change again in the coming months.

For further employment law advice, please contact a member of Woodfines’ Employment Law team on (Milton Keynes) 01908 202150, (Cambridge) 01223 411421, or (Bedford) 01234 270600.