The latest political developments have suggested that the UK could be set to depart the European Union on 31 October 2019 without a deal. The potential of a no-deal scenario is understandably causing concern for organisations that employ a large number of EU nationals and may be unsure of how to prepare for this in time. Therefore, we outline five key considerations below:

Right to remain for existing EU workers

By now employers are likely to be aware of the government’s EU Settlement Scheme, which has been introduced to allow existing EU nationals residing in the UK to apply for the indefinite right to remain after Brexit.

Settled status will be available to those with the required five years’ residency, while temporary status will be given to those who do not yet meet this residency requirement.

It is important to understand that this scenario will not change in the event of a no-deal Brexit and EU nationals already in the UK will still have until 31 December 2020 to apply for settled status. During this time employers will be able to continue employing any EU nationals that are already part of their workforce.

End of Freedom of Movement

The key distinction in the proposed no-deal Brexit scenario is that the freedom of movement afforded by the UK’s involvement in the EU will come to an immediate end following 31 October 2019.

This means that from this point onwards, EU nationals outside of the UK will no longer be able to arrive and commence work without meeting the necessary visa requirements. Therefore, employers will need to adjust their right to work checks when recruiting foreign nationals in the future to remain compliant with the law.

Prevent detrimental treatment

The decision of whether or not to apply for settled status will be deeply personal for many EU nationals and it is important to respect this position. While employers will quite rightly want to seek assurances about the long-term plans of their EU workers following a no-deal Brexit, they should approach any discussions on the topic with sensitivity.

Although it would be appropriate to inform staff of the EU Settlement Scheme, employers must not exert any unnecessary pressure on individuals or expose them to any other form of detriment if they choose not to apply.

As existing EU nationals will still be able to live and work in the UK freely until 31 December 2020, dismissing employees in the interim for being unwilling to apply for settled status will be potentially discriminatory.

Retention of employment rights

EU nationals who remain in the UK in the event of a no-deal Brexit will still be entitled to all of the same employment rights they are currently afforded, including those under the Employment Rights Act 1996 and the Working Time Regulations 1998. Employers must ensure these rights are not withheld from EU nationals and it may be advisable to send relevant staff a note to this effect to prevent any unnecessary concern on their behalf.

Protection from discrimination

EU workers with the right to remain in the UK will also be protected by the provisions of the Equality Act 2010. Employers should keep a particularly close eye on acts of discrimination if the UK does depart the EU without a deal on 31 October 2019, as this may embolden other staff or third parties to subject EU nationals to discriminatory language based on their nationality.

Employees should be protected from such behaviour and any incidents, however minor they may appear, must be investigated appropriately. Failing to do so could result in costly tribunal claims, therefore it is important to have an anti-harassment and discrimination policy in place.

With the above in mind, employers must plan accordingly for the possibility of a no-deal Brexit on 31 October 2019 and ensure provisions are in place to manage any EU workers. Although maintaining a handle on political developments can be a difficult task at times, employers must endeavour to ensure HR personnel and line managers remain suitably informed to respond to the needs of EU nationals in their workforce.

About the author

Kate Palmer is associate director of advisory at Peninsula

Go to Croner-i to find out more about the EU Settlement Scheme