Posted on Monday 17 September 2018 by Ulster Business

Brexit web

The countdown is on to a post-Brexit Northern Ireland. John Mulgrew speaks to legal experts about what that could mean for workforces across the region

The fog of Brexit uncertainty is continuing to hang over workplaces across Northern Ireland.

And between attracting and retaining staff, the potential introduction of additional work checks for non-UK staff and new costs, what should employers here be most concerned about?

While the UK Government unveiled an ‘employer toolkit’ the summer, legal experts across Northern Ireland say that a “lack of certainty will continue to present challenges for organisations in terms of retaining existing staff and recruiting new staff”.

According to Lisa Bryson, principal associate, Eversheds Sutherland, businesses are telling the law firm that “attracting and retaining staff is a major issue for them and it’s not getting any easier amidst the fog of Brexit uncertainty”.

“When we at Eversheds Sutherland surveyed employers across the UK regarding Brexit and immigration last year, almost 80% reported a major skills gaps in the recruitment market as the reason for recruiting EU workers.  

“There has also been a clear increase in the number of civil penalty notices being served by UK visas and immigration on employers and we are receiving far greater number of queries from clients regarding immigration compliance from employers in Northern Ireland than previously.

“It is clear that employers in Northern Ireland will need more help with immigration law and compliance for these reasons in future.  

“The process is complicated and mistakes can be expensive – up to £20,000 per employee. HR managers will need to be aware of the new immigration risks arising, whatever the outcome of the Brexit negotiations.”
Gareth Walls, partner and head of A&L Goodbody employment and incentives team in Northern Ireland, says “it’s increasingly likely some accommodation will be made which will allow EU workers to remain post Brexit but it’s equally not yet clear what that will look like”.

“In the short term, employers need to be doing as much as possible to encourage their existing EU employees to remain.

“If there is going to be a change post Brexit, then it will likely only impact new entrant workers from the EU and, even then, there will be a transitional period before new rules are introduced so that employers will have time to react accordingly.”

Louise McAloon, partner at Worthingtons, says that one of the “immediate challenges facing Northern Ireland businesses when it comes to their employees and workforces as a result of Brexit is how to assist and support their EU employees living and working in Northern Ireland who understandably want to know whether and how they can secure their status here”.

“On July 25, 2018 the UK government released an ‘employer toolkit’ to equip organisations with the tools and information to support EU migrant workers and their families on the EU Settlement Scheme. In essence to be eligible for settled status, an individual will need to: be an EU citizen, or a family member of an EU citizen, have been living in the UK continuously for five years (continuous residence), have started living in the UK by December 31, 2020.

“If they have lived in the UK for less than five years, they will generally be eligible for ‘pre-settled status’ instead.

“While the toolkit is undoubtedly a welcome development,  full details of the scheme are still subject to approval by Parliament and  >
that lack of certainty will continue to present challenges for organisations in terms of retaining existing staff and recruiting new staff in the coming months and years.

“Current ‘right to work’ checks will apply until the end of 2020 and we understand that there will be no change to the rights and status of EU citizens living in the UK until 2021.

“Employers are not expected to pay/support the cost of the EU Settlement Scheme application for their EU citizen employees but are welcome to do so at their discretion.  EU workers will not need to apply if they hold Irish citizenship or have indefinite leave to remain, but their family members from outside the UK and Ireland will.”

And according to Leeanne Armstrong, legal director at law firm TLT, the extent of the impact on UK and Northern Ireland businesses “remains somewhat of an unknown”.

“The most recent development in the path towards Brexit was the passing of legislation to bring about the UK’s withdrawal from the EU,” she said.
“The European Union (Withdrawal) Act 2018 will maintain all of the EU law in its current form, at the point of exit on March 29, 2019.

“This should provide assurance to NI businesses that, at least in the short to medium term, there is unlikely to be any change to the existing statutory framework – save that there is some limited scope for the government to remedy any defects in the law that arise as a result of exit from the EU.  

“Immediate and wholesale changes to employment laws is unlikely. Aside from possible interference with operational activities, the biggest short term challenges that NI employers will face centre on changes to immigration rules.

“These changes could add additional complexities to employer ‘right to work’ checks and processes, and bring about labour and skills shortages.”

Patricia Rooney, partner at Tughans, said:

“The UK government has confirmed there are no plans to make any changes to UK employment law in the immediate future. There is however the question whether post Brexit, UK employment law will keep pace with EU employment law.

“Employee relations in UK could be impacted if, post Brexit, the rights and protections for workers in the EU are improved, whilst those in the UK do not keep abreast with EU developments.

“Also, while EU migrants are allowed to remain in the UK until the end of the implementation period in December 2020, it may be that considering both the government’s desire to control migration and end free movement, with the possibility that employment rights in UK are less than in the rest of Europe, that EU workers find the UK a less attractive place to work.

“This would greatly impact those employers who rely heavily on migrant seasonal workers.”

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