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Brexit and employment law - the legal implications

View profile for Kerrie Hunt
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They say a week is a long time in politics and the period since the EU Referendum has not been without its twists and turns.

While there remains a high degree of uncertainty about Brexit and what it will mean for UK businesses, some of the immediate queries we have encountered post-23 June relate to HR managers fielding questions from anxious EU workers. 

So perhaps one of the early questions to pose is whether recruitment is likely to be impacted and/or whether there is a need to review workforce planning in the immediate aftermath of the referendum? 

Views on the subject vary, from those predicting an exodus of EU workers who may feel unwelcome and are looking to relocate to other countries in the EU, to a predicted surge in new arrivals, keen to establish themselves in the UK before any changes come to pass. 

Either way, it is important to remember that when it comes to recruitment – both in the short-term and during the UK’s two-year negotiation period – employers’ recruitment policies must not discriminate against prospective or current employees because of their nationality. 

A reluctance to hire EEA nationals due to perceived uncertainty over their future rights to work in the UK will likely fall foul of race discrimination provisions under the Equality Act 2010 on account of being related to their nationality. This may pose a challenge for employers looking to recruit to key permanent roles in the next couple of years. However, the EHRC Code of Practice suggests eligibility to work in the UK should only be checked at the final stages of the recruitment process and not at the selection stage. This remains the case. 

Another challenge for businesses in some sectors is that of skills shortages, which EEA nationals have played a part in filling. In reviewing workforce planning and how to address such skills shortages in the medium- and long-term, businesses need to remember the Government’s new apprenticeship levy which is due to come into effect in April 2017. If not previously part of your workforce planning, now is the time to consider whether apprenticeships are an investment that could help address any future skills shortages.

If you would like to discuss any aspect of this article, please get in touch with Kerrie Hunt or your usual Thrings contact.

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