Freedom of movement is currently enjoyed by all EU nationals, making recruitment much easier

Freedom of movement is currently enjoyed by all EU nationals, making recruitment much easier

Now that the formal process for leaving the EU has been triggered, the next two years will see intense negotiations as Britain tries to secure the best deal that it can. In Theresa May’s 29th March 2017 letter to the president of the European Council, May omitted any details as to the specific date that EU citizens will lose their right to freely move to (and work in) the UK. This issue – the ‘freedom of movement’ of EU nationals – is extremely important, and it will shape the recruitment process and and how UK companies employ their future workforce, regardless of size. It is sure to be a key issue as negotiations get underway.

The current situation

Freedom of movement is currently enjoyed by all EU nationals. It allows a person (and in some circumstances, their family members) to travel to any country within the EU and to work there. An EU national (or their family member) may also acquire a permanent right to live in the UK, providing they can complete a continuous period of five years here, carrying out economic activity or study.

The UK Home Office offers documents to EU nationals and their family members, which confirms their limited or permanent rights of residence and UK employment. Historically, EU nationals have not applied for such a document; it is not compulsory and their employer could confirm right to work simply by viewing the individual’s EU passport. Since the Brexit referendum of June 2016, however, applications for EU residence documents have significantly increased as people attempt to achieve some level of stability in what has become an uncertain environment.

Since triggering Article 50

Triggering Article 50 on 29th March made no immediate difference to the UK’s membership of the EU, or to EU migrants’ rights in the UK. It is overwhelmingly likely that this situation will prevail until at least March 2019, and the government has also hinted that a transitional period of change is expected after this date. This suggests that freedom of movement may not have a single enforceable cut-off date for several years, which is encouraging news in the short-term, and offers UK employers some security in knowing that there should be no immediate differences to their workforce.

Despite this, Brexit has caused both political and emotional shifts, and the number of EU nationals leaving the UK has increased since the referendum result. It is therefore in the interests of UK employers to consider the impact of Brexit on their current recruitment, in addition to making plans for 2019 onwards.

Preparing for Brexit

Small and franchise employers often operate in sectors which traditionally have high numbers of EU workers; for example, the private care industry, or food and drink. It will be to the benefit of all employers regardless of sector to engage with their workforce now to determine whether Brexit affects them personally, and how they can be assisted.

Employment in the UK, even where part-time or casual, is usually of extreme importance to an EU national trying to secure their residence rights. Your business might be able to help your workers both emotionally and practically, supporting their applications for residence cards, which offer a greater sense of security, and allaying fears of any immediate changes to their employment.

As this stage, it is not possible to say what access to the labour market EU nationals will have in the future. Clearly, this is an issue about which employers need to remain informed, and ultimately recruitment practices may have to change to account for the end of freedom of movement.

Small business must also be alert to how this could change HR practices. As EU citizenship becomes less significant to assessing a person’s right to work, conducting full and thorough right-to-work checks will be increasingly important to avoid any penalties in the event of illegal working. Those penalties can have a far greater impact on a small business than on a major corporation, and business owners and managers must take steps to ensure that they remain abreast of their duties as employers.

Gary McIndoe is director of Latitude Law.

Further reading on recruitment after Brexit

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