CIPHR webinar: How HR can prepare for Brexit2019-03-07T12:04:07+00:00

CIPHR webinar – How HR can prepare for Brexit

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Cathryn: Hello and welcome to today’s webinar, “How HR can prepare for Brexit.” A lot of uncertainty remains over the precise terms under which Britain will leave the EU and actually whether the UK will exit the EU as planned on the 29th of March. So this webinar aims to give you generally supportive advice that your HR team can take to support your organisation in the best possible way, whatever shape the UK’s withdrawal takes.

If you don’t know CIPHR, we’re a leading UK developer of HR recruitment and learning software that helps organisations to attract, engage, and retain their workforces more effectively. Our solutions cover the entire employee lifecycle, from attraction and recruitment through to engagement, development, management, reward, and retention. If you’d like to find out more about CIPHR solutions, you can opt-in to hear from us via the survey at the end of the webinar or email us by the address on your screen. My name is Cathryn Newbery and I’m CIPHR’s content marketing editor. With me today is Melinda Lord, HR consultant at AdviserPlus. Welcome, Mel. It’s great to have you with us today.

Melinda: Good morning, Cathryn. Thank you very much. First of all, I’d like to thank everyone for joining us today. As Cathryn said, I’m Melinda Lord and I’m an HR consultant with AdviserPlus. And if you don’t know AdviserPlus, we are a leading UK provider of human capital management. And what that means in kind of layman’s terms is we provide employee relations, advisory service, HR analytics, and policy work, and HR case management to a range of clients across a range of sectors.

Cathryn: Yeah, thanks, Mel. And here’s the agenda for today. This webinar should last around 45 minutes, with around 30 minutes from us and then time at the end to answer your questions. Do send in your questions, comments, and queries using the box on screen at any time during the broadcast, and we’ll answer them as best as we can. If you miss anything or have to leave the broadcast at any time, not to worry. Everyone who is registered will receive a link tomorrow to an on-demand version of this recording that you can watch anytime or share with your colleagues if you think they’ll be interested. I’m going to hand it over to Mel now, who will guide us through how Brexit will affect HR and what you can do to prepare your organisation.

Melinda: Thanks very much, Cathryn. Right. So, yeah, my name is Melinda Lord and I’m from AdviserPlus. We deliver ER solutions across a range of clients and a range of industries. So, there’s been an awful lot of uncertainty surrounding Brexit. And, in fact, we don’t think that it’s going to be getting any clearer really. So, our role today is to aim to help demystify the steps and considerations that businesses can take by putting on feedback from our clients, relying on our law firms, and attempting to untangle the copious amounts of information on this topic. Clearly, with recent developments, we do seem to be edging ever closer to a no-deal scenario. However, it appears that logically we’ll have to wait until the 14th of March to see whether there is indeed an extension to the current leaving date from the EU. However, it is worth bearing in mind that there are some things which businesses can do as employers now irrelevant of the outcome.

Clearly, we don’t have a crystal ball. However, the short-term impacts of Brexit are unlikely to see sweeping changes throughout employment law. Longer term, it will depend on the sitting government. The short-term impacts do seem to be relatively confined to the insolvency legislation and also the European Works Councils. So, the insolvency law regulates where insolvency proceedings can be opened within the EU. Amendments to the regulations on insolvency have been drafted, but they only come into force in case of a no-deal scenario. Ultimately, this piece of legislation relies on the notion that the deal is reciprocated between the UK and the EU, and that means that the rights of all EU and UK citizens are protected in an equal manner. In layman’s terms, if the 2018 amendments are put into practice, it means that the current commercial interests which we’re covered as we are a member state or indeed a foreign creditor would cease.

The second potential change is the European Works Council. So, these are information and consultation bodies which represent employees in European multinational companies. It must be said that if there’s a deal struck, then the way in which they operate will not change until the end of the transition period, and the government has put that until the 31st of December 2020. So, you shouldn’t expect to see UK employees not being represented by European Work Councils straightaway. However, in the instance of a no-deal Brexit, we won’t be able to put any new cases forward through the European Work Councils. However, cases inflow before the date, so cases that have been ongoing, would obviously continue through that.

There’s no arguing that the uncertainty surrounding Brexit is amplified when we go into a no-deal territory. Essentially, the free movement of people would stop on the 30th of March. This, therefore, means that we do not have any transitional phase, unlike the one highlighted in a withdrawal agreement. The immigration schemes which we’ll come on to shortly provide different timelines on whether the EU national, who’s a resident in the UK before or after Brexit, and again, they differ under a no deal versus a withdrawal agreement.

Under no deal, EU nationals can only apply for settled or pre-settled status if they’ve been resident in the UK before the 29th of March 2019. However, as always, the advice is to get your employees to apply now to obtain their status, and this will reduce the risk of them being barred under a no-deal scenario. There are also changes between family members being able to join under the rules. And again, they’re different between no deal to a withdrawal agreement. Under a no-deal Brexit, the cut-off for the applications to join their family member would be the 29th of March 2020. Under withdrawal agreement, there’s no cut-off date.

If, however, you happen to employ employees who come under the EEA, the EFTA, or Switzerland–and just to be clear, those countries covered into the EEA and EFTA are Norway, Iceland, and Liechtenstein–then the UK government hasn’t concluded a new agreement with them as of February this year which protects rights in the event of a no deal. This effectively means their rights are broadly the same post-Brexit as they were before. And in practical terms, that means that they’re able to apply for the EU settlement scheme from the 30th of March 2019. The deadline which it would run up to for them to be able to apply would be the 31st of December 2020.

So, right to work visas. The current way in which we collate visas and right to work documentation in a HR department will be looking to change. So, obviously, currently, we collect copies of people’s passports and associated visas to determine the right to work. I mean, all passports really should have been collated for each employee that you currently employ. However, some companies might have only collated in passports for those employees who could come from outside of the UK and the EU. However, in reality, I’m yet to see a HR department which doesn’t record all of the employee’s right to work documentation. The government has said that it will not begin auditing EU passports until after the 31st of December 2020. However, in order to rely on a historic audit, you obviously have to have already carried one out.

Under the government proposals, there are effectively two new schemes, the EU settlement scheme and the new European leave to remain. Under the EU settlement scheme, EU nationals are able to apply for a settled or non-settled status from the 30th of March 2019. In a no-deal scenario, EU nationals who are not residents by the 29th of March 2019 would not be eligible to apply for the EU settlement scheme. In these instances, those EU nationals would land into the UK and would be visa-free for a period not exceeding three months. They would then need to apply for a fee-based application for European temporary leave to remain. This would be valid for 36 months. However, things to bear in mind in relation to this. This visa won’t be able to be extended. It would not lead to settlement status or indefinite leave to remain. It cannot then be switched to the EU settlement scheme.

In cases where we have a withdrawal agreement, the new European leave to remain as a full scheme will come into force from 2020. Then, they must wait for the new immigration system to come into force. Furthermore, the EU settlement scheme is likely to prove difficult from the get-go, just the arduous process for application. All applicants will need to complete an online form, and for this, they’ll need proof of identity. Residents in the UK and also for ID purposes, they’ll need a passport with a biometric chip. People will also need their NI numbers, and this would prove difficult for people who have been resident in the UK but under a student visa. The application process formally opens on the 30th of March. However, the government has been running previous test phases which have incurred a fee.

When we come to 2021 and we look at the new immigration system, the way in which we would actually be recording people’s visas will change. So, effectively, the way that it has been explained is that, on application, the individual, the European national would be given a code, a reference number effectively. This code then needs to be passed onto their employer. And the employer will be able to go to the government gateway scheme where they’re able to put the code in, and this will tell them whether the person has the right to remain or not. Whilst this seems easy, in practice, it’s going to be a bit trickier than that because you’ll have to record the outcome of the online check. So, obviously, at the moment, you would be taking the passport, you’d be taking a photocopy of the passport, and you would be certifying that to say that you sent a copy of the original. But in this new instance, they’ll be doing it only on an online portal.

So, effectively, the law firms that we’ve spoken to have been saying they’re advising their clients to take a screenshot of the screen showing the outcome of the right to work check, and then to be able to file that on the employee’s electronic file. Something else that you need to bear in mind is that following the grace period up to the 31st of December 2020, the government will no longer be accepting EU ID cards as proof of ID. They’ve had a long-standing issue with the EU ID cards. One of the main issues is they don’t carry a biometric chip. So, from 2020, they’ll be phasing those out, and as an employer, you need to be bearing in mind that you won’t be able to rely on that as an ID check moving forward. Just to get an understanding of actually where you are, we’re looking to run a poll of what level of post-immigration support are you currently providing to your EU employees.

Cathryn: Okay, thanks, Mel. And so, as Mel said, the question is what level of post-Brexit immigration support are you currently providing? There are three options to choose from here. Low, you’re confused about the process, medium, you understand the basics, or high, you have provided comprehensive immigration support. Mel, from your experience with the clients you work with, where are many HR teams at the moment on this?

Melinda: I think, to be honest, there’s an awful lot of confusion with respect to this. So, you have some of the big companies that have actually looked to put together the amount of collateral that they need to support their employees. But you have to bear in mind that, actually, the Brexit situation is continually evolving. So, I think, most people are relying on the government whitepaper that was written in 2018.

Cathryn: Okay, thanks very much. So, I’m going to close the poll now. And most of our audience say they are confused about the process for providing EU employee support. And a similar percentage say they understand the basics. But very few of you with us today say they have provided comprehensive immigration support. So, hopefully, those of you who are confused or looking to enhance your knowledge will be able to find this webinar useful. So, I’m going to hand it back to Mel now who’s going to take us through right to work visas.

Melinda: Okay. So, currently, we have several tiers that people can come into the UK under with which to work. One of the main routes that people use from a skilled migrant perspective is the tier 2 visa. So, it’s the main immigration route for working in the UK and it’s for skilled workers with a job offer. Their visa is, therefore, always linked to a specific job. There are different categories of tier 2 visas. However, the most applicable of these would be either the general visa or the intra-company transfer visa. So, this is where you’ve got large companies and they employ employees across the piece inside and outside of the EU.

As you would expect, there are different requirements in order to come into the EU under this type of visa. The government has outlined the changes for tier 2 visa which builds on their 2018 white paper. One of the most impactful areas in relation to the tier 2 changes is to remove the relevant labour market test. Now, this test looks at a job that falls underneath the tier 2 labour, which basically, they would assess the EU national and also the UK national against the job based on the job description only. And where the UK national is effectively performing the same on the job description alone, they must give it to the UK national. They’re looking to abolish that test.

The other thing which has caused an outcry, particularly from the manufacturing sector, is the proposal to increase the minimum salary offered per tier 2 employee. So that’s of £30,000 per year. Currently, the level is 30,000 or the level most appropriate for your job role, and it’s that last bit to pay attention to. So, most people who employ under tier 2 take the latter of that. So, they look at the level most appropriate for the job role. The mandatory uplift is liable to cause businesses significant problems. You have to look at, you know, that as an uplifting cost. If you add that on to the surcharge, that’s quite an expense per person. The UK’s main manufacturing organisation has warned that the minimum salary uplift in the proposals are disastrous and has further outlined that even with the current requirements under tier 2, which means that employees should have a graduate level degree, that 88% of the current skilled workers under tier 2 would not be compliant with that threshold. They’ve warned that it would lead to a shortage across the skill base.

Another significant proposal within the area is to lower the skill threshold, which is currently at RQF level 6. So, that is, that you must hold a graduate degree to be able to come to the UK on that visa. They’re looking to lower that to the A-level standard which they refer to as RQF-3. Businesses in the UK have argued the proposals on tier 2 in respect of lowering the qualification threshold does not go low enough. And the reason for this is that people view that lower-skilled workers are being completely kind of kept out of the loop on these visa changes. The government’s argued that it will bring in new skills to the UK. However, it will uplift employer’s costs. So practical advice from the law firms we’ve spoken to is, actually, if you’re wanting to employ any EU worker post what is currently the exit date for the UK, which is the 29th of March, then you should look to employ on a tier 2 visa up front. However, obviously, to employ on a tier 2 visa, you will need a sponsorship license.

So, sponsorship licenses. Historically, there has been a delay with sponsorship licenses and visas. Sponsorship licenses allow employers to employ foreign nationals and post-Brexit European ones too. The government has made no secret of the fact that it wishes to overhaul the immigration system to make it a one-system approach for EU and other foreign nationals post-Brexit. However, with the March cut-off date ever looming and the no-deal scenario looking ever more likely, if you wish to continue to employ EU nationals, you need to apply now. And if you aren’t sure whether you need permanent, so that’s the tier 2 5-year or more visa, or whether you need temp EU worker, then you should be looking to apply for both tier 2 and tier 5.

The government has proposed an extension to tier 5 visas to include low-risk workers from low-risk countries and to allow people to switch when they want a visitor’s visa from a low-risk country. They’d be granted a 12-month visa with a 12-month cooling off period. And a 2-year pilot study is already underway under the seasonal worker scheme. This, from the government’s point of view, enables recruitment of 2,500 temporary migrant workers for specific roles in edible horticultural sectors. Under the pilot, they’ve got a limited visa for six months. Under the scheme, they must be sponsored by the scheme operators.

One immediate issue, however, with these pilots and with this further extension is that 12-month cooling off period. So, the government is saying that people could come in on this, on a 12-month visa, but actually, then they would have to leave the UK for 12 months. So, from an employer’s perspective, you would be consistently looking at retraining your seasonal workers. One of the biggest impacts you’re potentially likely to see is that, actually, you’ll have a lot more businesses applying for the sponsorship licenses. So, actually, even though the government’s talking about a two to three-week turnaround time to be able to get the licenses back out to people, historically, when we’ve seen kind of mass applications, you can expect to see those timelines lengthened quite considerably.

So if, from a recruitment perspective and workforce planning perspective, you’re looking to employ the EU nationals moving forward, then you really do need to consider looking to put in for your sponsorship license sooner rather than later. As we’ve referenced previously, those nationals from the EEA, which is Norway, Iceland, Liechtenstein, and Switzerland, have got a separate agreement with the UK. And therefore, you will still need to collect their IDs but they effectively can have the same rights post-Brexit as they do at the moment.

So, HR actions to take on policy specifically. So, there’s a few policies you’re going to want to look at. You’ll need to be looking at your equality and diversity policies. The reason for this is that we have seen a growing level of kind of discrimination in general, actually, but certainly, an increase in discrimination cases since the Brexit vote was announced. As employers, we evidently have to be ahead of the curve and take actions to ensure we’re protecting our employees. So, it’s not about just looking at the policy and going over it. It’s about making sure you have the training to underpin it. AdviserPlus, we specialize in ER policies, so do feel free to come through to us. We regularly review, harmonize key HR policies, and we also make sure they’re up to date with key changes in employment law and, obviously, key changes from a Brexit point of view as well.

One of the biggest things that customers are saying to us is that their employees are actually very, very confused about how they should be applying for these schemes. And therefore, it’s very important to make sure that you do have the right level of guidance and support. Certainly, applying for the EU settlement scheme, people have been saying that the form which is meant to take half an hour is taking well in excess of two, three hours. You know, from a mental health perspective, that is liable to push the stress levels up quite considerably. So it’s about making sure that people are applying for their visas or schemes in as timely as possible and appropriately ready to enable them to be able to apply.

Cathryn: Okay, thanks, Mel. We’re just going to move on to our second poll now. If you could just pop the screen on to the next slide, and that question is, to what extent have you updated your current HR policies, or written new ones, to be compliant with the upcoming changes? So, again, select one option here. You haven’t updated any yet, you will begin this process when you understand more, or you have already updated all of your policies. And, Mel, in your experience with the clients you’re working with, whereabouts are they on this journey towards updating their policies?

Melinda: I think most people are waiting actually to see the outcome of Brexit. Certainly, from a recruitment perspective, people are starting to update what would be the right to work process, because obviously, that would need updating. But in terms of the diversity and equality policies, we’re not seeing people have updated those at the moment.

Cathryn: Okay, thank you. And that tallies with what our audience is telling us, too. So, we have 43% of you said that you haven’t updated any of your policies yet. And 55% of you said that you will begin this process when you have more information. Just 1% of you are confident that you have updated all of your policies already. And, Mel, what advice would you have for the 43% who haven’t started work on this yet?

Melinda: I think it’s really important to scope out where your risks are. So, certainly, if you’ve got someone in-house that can do policy updating, then, you know, obviously, you should use them and make sure you keep abreast of the changes. And as I mentioned previously, we at AdviserPlus, we do an awful lot of policy work and we keep our clients abreast to the policy changes, and that includes the changes where Brexit’s concerned. So, you know, do feel free to come through to us.

Cathryn: Okay. Thanks very much. Just hand over to you now for the remainder of the presentation. We’re going to look at HR actions to take with regards to audit next.

Melinda: Absolutely. So, the government isn’t proposing to start auditing on the EU national’s right to work documentation until after the transition period, which would be after the 31st of December 2020. However, you should really begin to be collating all passports of EU nationals now and ensure that you’ve updated your processes for verification. So, we need to be, obviously, including those things in relation to the code which employees will be given. We need to be looking at making sure that you’re aware which of your employees actually carry EU passports and to be putting them aside from those employees that are citizens of the EEA or the EFTA and also from Switzerland.

So I think that it’s important to make sure that you are running these audits now. The government has said that whilst there is what they’re calling a grace period until 2020, you will only be able to rely on historical and current checks if you’ve actually gone through the process of running them. So I do know that there are a couple of companies at the moment that are sending out information to their staff and to their employees to collate all of their passports.

One of the other things to bear in mind from a HR systems perspective is that there are potentially liable to be updates that you’re going to need to complete from that point of view as well. Certainly, any HR practitioner will tell you that the right, you know, mass right to work checks are normally a right pain in the neck. So it’s about making sure that you are taking the action now, briefing your managers, making sure they understand what the obligations are, and making sure that your HR team are actually set up to be able to give that advice as well with a level of confidence to it.

So I guess from our perspective, the biggest messages really are be prepared, update your processes to ensure compliance, make sure that you’re on top of the new right to work checks, including the compliance of checking status against the EU settlement scheme and the rules around visas. It’s not a bad time to consider putting out guidance information out to the line manager population at this point to be able to support them, as most of your ER problems will come from, you know, potential misunderstandings with that level of employee. Obtain a sponsorship license if you wish to employ any EU nationals post-Brexit. Look into that now. There are fees attached to it but you do need to make sure that you are trying to get your requirements and your license requests in there as soon as practically possible.

Recruitment. Obviously, we’ve spoken about the fact that the government’s proposal is to uplift that tier 2 minimum salary to £30,000. On top of that, you’ll obviously have the surcharges. And there is a potential that, you know, if potentially we came out with a no-deal Brexit that you will have gaps that you’re going to need to be able to fill from roles. So, it’s really important from a workforce planning perspective to be planning ahead and to be looking at your succession plans also. I know a lot of people in companies where they’re looking to recruit EU nationals, they’re looking to recruit them now. So, they’re bringing the recruitment of any EU nationals forward in order to try and avoid that end of March date.

Communication, I think this is one of the biggest things. So, even though Brexit is a very uncertain time, I think for all of us, I think the main focus is that you update what you can, when you can, with your employees. So actually, you need to be updating those timelines. You need to be updating those scheme details. And also, as we possibly, you know, as we heard today, the time table on this is always moving. So, literally day by day, things change from a Brexit perspective. From an employer’s perspective, we’ve got a little bit of comfort from that 2018 paper, which is where we’ve got all of the tier 2 changes, the tier 5 changes from. And that is what they’re looking to bring in for the new immigration system. And certainly from a tier 2 perspective, they’re looking at having that interim phase where people can come into the UK if we have a no-deal Brexit and they’ve got that three-month window with which to apply for European leave to remain.

So I think it’s really important that whatever information that you have, you’re making sure that it’s right and you’re sharing it with your employees. And that you’re including regular updates. I think if there was anything to take away from this, it would be to make sure that they are supported with their applications for their various visa types and that you are making those calls and putting those applications in as soon as possible.

Cathryn: Okay, thanks so much, Mel, for all that advice. We are just on to the Q&A portion of the webinar now. And we have a number of questions, unsurprisingly, from you, our audience. I’m just going to start off with not a question but actually a comment from Sue around the pilot phase of the settlement scheme. She says, “Our whole company has been helping staff to use the pilot phase of the settlement scheme, and they have found it extremely quick and easy using the phone app. Results for almost everyone confirming status have come back within a few hours. And as an employer, we have received a confirmation email with a code and easy link to view the status for our records.” So, that’s a really great bit of feedback, Sue. Thank you for sharing that. Hopefully, that allays some of the fears others of you might have around using the settlement scheme. We have a couple of questions relating to students applying under the settlement scheme. What does a student use to apply under the settlement scheme if they don’t have a National Insurance number?

Melinda: So, this is one of the things that have actually already been raised in one of the government papers. So, effectively, there’s other things they can potentially use. They can look to use their EU passport. They can look to try to use their…they can use their EU passport. They can use their EU ID documentation. I mean, certainly, students that have been attempting to apply minus the NI have been finding it quite difficult. They’ve had to rely on other things. So, they’ve had to rely on kind of rental agreements. They’ve had to have their visas attached to another family member. So, they’ve had to go through that route rather than the NI route.

Cathryn: Okay, thank you for that. We have another question about student application. This one is quite a bit more specific case from Greg. He has, “A student from France who is supposed to come to London for an internship starting in April 2019 for 6 months. Will she be allowed to enter? I’m confused as to which scenario applies to this person.”

Melinda: Okay. So, we’ve got a student coming in on April, okay. So, effectively, they’re going to be looking to be here for a temporary period of time. Is that right, Cathryn?

Cathryn: Yeah, that’s right. So, six months internship.

Melinda: Okay, all right. So, they would come under the tier 5 visa.

Cathryn: Okay.

Melinda: So, in terms of application, they need to make sure they put an application in for a tier 5 visa.

Cathryn: Okay, thank you. Hopefully, Greg, that gives you a bit of a steer. Karen asked, how much does a sponsorship license cost?

Melinda: A sponsorship license, I think it varies. So, it depends on what size your organisation is. So, for instance, a tier 5 visa, sponsorship license rather, if you are a small organisation or charity, it’s currently £536. If you are a larger organisation, it’s the same. If you want to apply for tier 2 and 5 at the same time, and again, small business or charity, it’s £536. If you’re a medium to large company, you’re looking at £1,476 currently for that.

Cathryn: Thank you. We have another question here. “If we employ someone from the EU after March 2019, but they already have the settlement status, do we need to apply for visa, be that a tier 2, a tier 5, or another visa?”

Melinda: No. So, effectively, to be able to come in under the EU settlement scheme, if they’ve already been given kind of settlement status, that means that they’ve been resident in the UK typically five years. So no, you wouldn’t need to put in a further application under a visa.

Cathryn: Okay, that’s a relief. And we have a question here from Jane. “You’ve talked about employing skilled EU nationals post the current exit date. To clarify, if we wish to employ non-skilled workers once we leave the EU, what happens during the implementation period? Does the ETLR only apply in a no-deal situation?”

Melinda: The European leave to remain? So, it depends. So, if it were to leave in a no-deal situation, then the government have put forward what would be like a temporary European leave to remain, which would only be relevant in a no-deal situation. If we have a withdrawal agreement, then the new immigration system would come in 2021. People would then, therefore, be expected to apply for that once they came into the UK.

Cathryn: Okay, thank you, Jane. Hopefully, that answers your questions. I have a question from Karen who asked, “Do you need a sponsorship license for existing EU nationals or just for recruiting new employees?”

Melinda: So, this was a question, actually, that’s come up previously. So, you are looking at a sponsorship license to employ any EU workers when we get past the transition period, 2022.

Cathryn: Okay, thank you. We have a couple more questions on the sponsorship licenses. So, Emily asked, “When you say we need a sponsorship license to continue to employ EU nationals post-Brexit, do you mean post-December 2020 or post-March 2019? What if I have EU nationals in my recruitment processes right now?”

Melinda: So, effectively, they’re going to need to…well, it depends on deal or no deal. So, if we look at them coming in under, say, the withdrawal agreement, if by some magic we get that passed, then effectively, they would be looking to apply for, obviously, under either a tier 2 or a tier 5 visa, depending on their level of education. If it was, for instance, a no deal, then they’d land in the UK and then they’d be expected to be visa-free rather for 3 months, and then they’d be asked to apply for the European leave to remain. So, I think certainly from the law firms that we’ve talked to, because this question comes back a lot, they’re saying, you know, “When in doubt, you need to be applying for a sponsorship license, and they need to be applying for the various visas, and they need to be doing that ASAP. When in doubt, put them on a tier 2 visa straightaway.”

Cathryn: Okay, thank you, Emily. Hopefully, that answers your question. I’m going to keep this Q&A quite brief because they’re rattling in right now. Another question about sponsorship licenses. The fees that you talked about earlier, Mel, are they a one-off or do you have to pay those for each role that you recruit?

Melinda: Well, guidance from the government on this is per person.

Cathryn: Okay, thank you. Somebody asked, “We have members of staff that have been working with us for years and go back to a time when we were not required to keep right to work documents on file. Therefore, we would not have any information which tells us what documentation they have and if they are EU nationals. What would you recommend we do?”

Melinda: You need to start auditing. So, effectively, you need to ask people to bring in copies of their passports. You need to be taking a photocopy of the page where they’ve got a picture on them. You need to be making sure that you’ve got a copy of that in their employee file. And we, normally, as a HR person, have to certify that you’ve seen the originals. So, they typically would hand over their passport to you, you take a photocopy of it, and you certify to say that it is an accurate reflection of the original document. But realistically, you’re going to have to start right to work audit and you’re going to have to start collating that information. And I realize that that is an arduous process, but it is something that you need to start doing, I would say, as soon as possible.

Cathryn: Thank you. And with the auditing of the passports, does it mean that you need to see everybody’s originals again and make additional copies?

Melinda: So, I would say yes. So, effectively, if you’ve already…so, have they already got?

Cathryn: Yes, sorry. So, the question was, with auditing passports, does this mean obtaining the original and making a copy again signed and dated?

Melinda: I mean, you should potentially be carrying out an audit, I would say, every year, in any case. So just making sure that the passport’s still valid, making sure that you’ve got the right copy of the passport. Obviously, some people’s pictures might have changed. So, you know, it’s something that you should be doing on a yearly basis in any case.

Cathryn: Okay, thank you, Mel. And a number of you have asked if the recording is available after the broadcast. Yes, there will be a recording. The whole broadcast will be recorded, and it will be sent to you via email tomorrow to a copy of it that’s posted on YouTube that you can watch, fast-forward, rewind, share at your leisure. So, don’t worry if you’ve missed some information or were late to the broadcast, you’re going to be covered by that recording that we’ll share with you tomorrow. So, back to the main Q&A. Re-employing EU nationals post-Brexit. Presumably, a sponsorship license is not necessary if you are employing an EU national with settlement status already, i.e., they join you from another UK employer.

Melinda: Yes, that’s correct.

Cathryn: Okay, that’s good. Nice and easy one. Abby asked, “If employees only have an EU ID card, will they need to apply for a passport?”

Melinda: So, I mean, definitely, from 2022 rather, there will be, you know, they won’t count as ID documentation here in the UK. So, I think it’s really, really important that you are asking them to apply for a passport. Clearly, they do have a little bit of time to be able to do that. And for some EU nationals, that’s going to be real kind of pain in the neck, actually, because they’ve relied on their EU ID cards. But our government has made no kind of bones about the fact that, actually, they are not wanting to rely on those moving forward.

Cathryn: Okay, thank you. Julia asks if we have any clarity yet on how DBS checks will be affected by Brexit.

Melinda: Not at the moment. But, obviously, as and when we do get further information, we are more than happy to update people.

Cathryn: Okay, thank you. We will wait for that one then. Denise asked, “If an EU passport holder has applied for settled status and moves employer, does the new employer need them to have a tier 2 visa if they are applying after 29th of March 2019?”

Melinda: Well, that would depend in terms of whether we leave with a no deal or not, actually. Certainly, they’re looking at, if someone has got settled status, then they’re not looking at having to push through a visa on top of that. So that’s the reason why you’ve got your European [inaudible 00:36:16] settlement status. So, I think a lot of it will depend whether we leave with a no deal or whether we leave with the withdrawal agreement. Bear in mind that a lot of this information is pulled from the 2018 paper which kind of relies on the withdrawal agreement and, therefore, makes plans in case of a no-deal exit. So, I think it massively depends on how we exit the EU.

Cathryn: Okay, thank you. We will, of course, wait for the outcome to be confirmed, which is, I guess, is a frustrating thing for many people in the line is that we know we need to take action, we want to take action, but we don’t have a huge amount of clarity on what we can possibly do right now. So, Vivian asks a question about applying for settled status. “What are the requirements to be able to apply in the test phase?”

Melinda: So, in the test phase, they’re still looking at the, I think it’s the five-year residency prior to the application. I know, again, it depends on whether we’re looking for under which way we leave the EU effectively. But the test phases have been running actually since, I think, January this year. And therefore, they need to have been resident for five years previously and they need to have not left the country for a period of six months or more during that time.

Cathryn: Okay, thanks, Mel. Vivian, hope that answers your question for you. And my next question is from Rosie. She asked, “If you already have a sponsorship license to employ workers from outside the EU, will this automatically allow you to sponsor EU workers as well post-Brexit, or is it a separate sponsorship license that is required?”

Melinda: The government has been saying that, actually, the sponsorship license will carry on through. So they’re looking at the fact that, if you are currently a holder of a sponsorship license for tiers, you know, 1, 2, and 5, that actually, that would just carry on through. So, in the future, they’re expecting to add the EU nationals into basically the areas of tiers 5, 2, and 1. And so I wouldn’t be thinking you’d be needing a separate sponsorship license.

Cathryn: Okay. Hope that’s helpful, Rosie. My next question comes from Joanna. She asked, “We previously applied for a sponsorship license. How long does it last for? And if it’s expired, how can I reactivate it?”

Melinda: Well, the first thing for you to work out is actually if you still have it. So, typically, they’ll look at five years. So, it’s about understanding, actually, where you are in that timeline.

Cathryn: Okay, great. So, Joanna, best thing is to just go away and double check what you’ve got there. And then you can take the next appropriate steps. And we have a question here from Vicki. She says, “Approximately, half of our workforce are EU nationals, and these employees would not qualify for the £30,000 salary threshold tier 2 visa. And we are starting to help them apply for settled status. Is this enough or will they all need tier 2 visas after 2020?”

Melinda: So, in terms of the settled status, from the current guidance that we’ve had from government, they’re looking at the fact that they would potentially need visas moving forward. That said, they are two separate schemes. So, I think that a lot of this stuff will, you know, when we start to have these cases tested potentially in the courts, certainly the advice that we’ve been getting from our law firms that support us when they’ve had clients go to them and say, “Actually, I want to employ people post-Brexit. What do you advise?” They’re saying, actually, you know, they’ll either going to have the European settled status or the European leave to remain. But they’ll be doing so under kind of a sponsorship license.

Cathryn: Okay, thanks very much, Vicki. I hope that answers your question for you. So, our next question comes from Samantha, she asks, “How will Brexit change the relationship with agency staff? What expectations would we have from agencies around this and sort of certifying that staff have right to works and those checks are carried out?

Melinda: So, effectively, it’ll be similar to the situation that we have at the moment. So, we need to look at who is the primary employer. If it is an agency, and they are kind of contracting on a temporary basis, then it will be their responsibility to make sure that people have the right to work. And, therefore, the legal responsibility would sit with them. But certainly, from a company and an employer perspective, you would be wanting to have things in your commercial contracts that actually picked up on that point.

So they had to certify to you that the people there were providing to you have the acceptable right to work. And that’s no different to actually how things run currently with foreign non-EU nationals at the moment. Certainly, in some sectors, you’ll find kind of levels of illegal workers higher than others. But I think it’s just about making sure that you are managing your risk profile and, where appropriate, are making sure that that’s in the contracts and both of you understand that that is the requirement for you to be able to take stuff from them on a temporary basis.

Cathryn: Yeah, I agree. I think that’s a really important point that some people might sort of not cover during the policy check is to check or see your contracts with agencies. That’s a great point. And Andy asks, “What would be your advice for supporting UK nationals who are seeking to continue to work for your company in other EU countries post-Brexit?”

Melinda: So, that’s a really interesting point, actually, because an awful lot of the EU countries, you know, whilst here in the UK, we are busy trying to make sure that everything is, I guess, as good as it possibly could be. There are countries, Spain for instance, they haven’t done a great deal. And one of the things from a withdrawal agreement perspective was that, actually, we’re looking to make sure that the rights of our citizens in Europe were actually protected. So, I think, from their perspective, I think it’s fair to say that they are going to need to have visas as well for their appropriate countries. And it’s about getting in contact with kind of employment lawyers, employment solicitors in those various countries to be able to understand what plans they’re putting in place for a no-deal Brexit.

So, for instance, in France, they have put things in place working on the basis that we are potentially likely to come out minus a deal. And I think it would be a very, I mean, it’s a very unsettling place to be if you’re an EU worker in the UK right now, but I can imagine that it’s even more unsettling if you happen to be a UK national that’s working in a company in a different country. So, you will require some level of a visa. No country has come out to say that they’re going to be popping us on the exempt list where visas are a concern. So, I think it’s about making sure that you’re communicating with your staff, that you’re getting as much legal support as you can from that relevant country.

Cathryn: Yeah, thanks, Mel. And thank you, Andy, for flagging that interesting question for us. We have a question from Sally. She works at a school that is looking to employ someone from Belgium. If the person begins employment after 29th of March 2019, how do they go about doing that?

Melinda: If they’re looking to come over from Belgium, okay. So, in the event of…I mean, if we go kind of, I guess, what would be the worst-case scenario, under a no-deal Brexit, then the no-deal planning and the temporary European leave to remain point would kick in. So, basically, they would land into the UK airport, and they would straightaway be subject to UK immigration. That means they could go visa-less for three months. During that three months, they’d be expected to apply for European leave to remain. And they wouldn’t be able to apply to the EU settled or pre-settled status as they wouldn’t comply with the eligibility criteria on that. So, it’s very much a case of, as soon as they land, they understand that they’ve got three months. In a no-deal scenario this is, no deal, three months in the UK. Within that time, they must apply for the European leave to remain, temporary European leave to remain. And then it’s a case of making sure and kind of checking up really where they get to on that. There is a certain kind of eligibility criteria with reference to that.

The other thing to kind of mention here is that the difference between a withdrawal agreement and a no-deal situation, when we look at potential removing people from the UK. So, on a no-deal Brexit, you would be looking at those who have arrived in the UK before 29th of March 2019 or applicable. Withdrawal agreement is those who have arrived in the UK before the 31st of December 2020, the deadline to apply for EU settlement scheme in the event of no deal, 31st of December 2020, in the withdrawal agreement 30th of June 2021. And also, from a no deal perspective, they’re looking at quite a low threshold from a deportation point of view. If people have committed minor offenses, then under a no-deal situation, we’re talking about petty theft and the like, then they would be likely to be deported.

So I think it’s important to note that there are differences here between a withdrawal agreement and a no-deal scenario. But if we were to work with the withdrawal agreement situation under this circumstance, then effectively they could look to land in the UK. Therefore, they would have arrived in the UK before the 31st of December 2020. And they could potentially look at pre-settled status. So, I think it massively depends on how we leave, and it’s just about making sure that we are understanding the differences between the two scenarios, really, because it will impact on an individual level quite a lot, really.

Cathryn: Yeah, yeah, absolutely. Thank you for explaining that. And we touched on passport certification a few minutes ago. We have some follow-up questions I’ve just picked up in the chat. So, one of the questions is, “We have copies of passports, majority are not certified. Do we need to ask for them and certify them?” That feels like a yes from your previous conversations. Somebody also asks, “What do you actually mean by certifying a passport? What do you do? Do you assign a date here? Do you say, ‘This is fine,’ or do we need to do something a little bit official than that?”

Melinda: Okay, all right. So, first of all, yes. All ID kind of documentation, particularly where passports are concerned, if people have kind of casual tax bills and the like, you have to certify to say that you have seen the original. There’s an actual kind of phrase that typically we would use. It’s held on the kind of government websites. And off the top of my head, you sign to say that it’s a true reflection of the original documents. And then you would put your name, your job title, you would sign it and you would put the date. Some places actually have a stamp that they can actually, you know, they go through and manually stamp people’s copies passports, photocopies of passports once they’ve been with them and they’ve done it. But, yeah, absolutely, you need to certify those documents.

Cathryn: Thank you, Mel. There are some other questions about what kind of documents that you can accept. So, some people, one audience member asked, they don’t have a passport. So, what could they accept? Another audience member asked, “We already have signed and dated ID cards. Do we also need to get a passport certified as well? What kind of documents do we need to be certifying and checking here?”

Melinda: Okay, all right. So, effectively, that would come into kind of an employee’s right to work checklist. So, there’s got two lists on the right to work checklist from the home office. So, you’re looking at either list A or list B. You’re obtaining original documents from either list A or list B. So list A, a passport showing the holder or a person named in the passport as the child of a holder is a British citizen or a citizen of UK colonies, passports or National Identity cards showing the holder, permanent residence certificates, a permanent residence card issued by the home office, a current biometric integration document, current possible endorsed to show that the holder is exempt from elimination control. A birth certificate, short or long, adoption certificate. That’s just changed incidentally. They used to only accept the long version of that. List B, current UK passport, current biometric immigration document, a current residence card, a current immigration status document.

So, if people actually go onto the asset.publishing.service.gov.uk/government, you’d be able to find what’s known as a right to work checklist. And literally, you can work through which documents are acceptable from a right to work perspective. And, again, you have to see the original, you have to take a photocopy, you have to sign it off as the HR person or the MD or whatever the position of the person who’s taking the copy. So, you must check the documents are genuine, that the person is obviously clearly the right person and the same person. So, you need to kind of run through. Now, the home office doesn’t expect you to be able to see all kinds of fake, some of the fake documents are actually really rather good. But it’s about making sure that if you’ve got a visa and if you need to be able to check that you’re able to ring up and check with them, with the home office.

Cathryn: Okay, thanks, Mel. Just a note on these right to work checks. A few months ago, I think back in September or October, I recorded another webinar with another CIPHR partner called TrustID, which offers an electronic background checking and document checking services to help you spot those fakes. And that webinar is available to watch and catch up on our website. If you would like me to email you a copy, please send in a message through the question box and just kind of say, “Yes, I want a copy of that,” and I will email you personally after the webinar with a copy of that that you can watch at your leisure if you want to find out more about doing those kind of background checking services electronically. Just going back to that list you talked through, Mel, you said many times, it needs to be a current document. And Carly asks, “If people only have an expired passport, do we need to ask them to renew?” It feels like you can either ask them to do that or so you provide other valid current documentation from those lists.

Melinda: Yeah, absolutely. So, in terms of a UK passport, I’m just double-checking here actually, because I recall in training it to say that you could have an out-of-date one. So, I’m just double-checking that. Certainly, a non-UK passport most definitely needs to be in date. It’s saying here that it needs to be in date for the UK as well, actually. Current UK passport.

Cathryn: Okay, thanks very much. We’ve reached the end of our broadcast time, I’m afraid. Thank you so much for your attention and participation, and thank you so much, Mel, for sharing your expertise and fielding those questions so deftly. I think, then, because they were quite all over the place and quite comprehensive. So, thank you very much for joining us. Thanks, again. Have a great rest of the day. And we hope to see you on another CIPHR webinar again soon.

Experts from AdviserPlus join CIPHR’s Cathryn Newbery for a lively and thought-provoking discussion about how Brexit might affect HR teams, the priorities that need to be taken care of now and how employment law might change.

If you’d like more information about CIPHR, email sales@ciphr.com.

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