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Brexit advice for employers from a legal expert

If you’re an employer, business professional or HR practitioner in the United Kingdom, you know the far-reaching impacts of Brexit. And especially, how it affects the way you operate in the workplace. Fourteen percent of the entire UK population is foreign-born – and a disproportionate amount of those of working age. It’s more so when you’re operating out of London, where a full 35% of UK immigrants live.

Keith MacKenzie
Keith MacKenzie

Passionate about human resources, employment, and business management, and an expert at sharing that expertise.

brexit advice for employers

It’s much more pronounced when you have the double whammy of Brexit and COVID-19. With 1.3 million of those born abroad leaving the UK in a 14-month period ending September 2020 – more than half from London alone – you have to wonder if some would stay in the United Kingdom if they knew they had the support of their employer and peers, if not their government.

As a UK-based employer looking to navigate the precarious immigration landscape post-Brexit, you’re likely wondering how to proceed and how to stay compliant in this new era. Namely: can you still recruit non-UK nationals from the EU? What happens to your current non-UK workforce? Can you keep them? What about international mobility – can your workforce continue moving back and forth? And so on?

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To field those questions, we sat down with EU-based legal expert Stefan Nerinckx to get Brexit advice for employers such as yourself. Stefan is a partner and head of the HR Law Department at Fieldfisher Brussels, and a professor in employment law at University College Brussels. He’s been advising companies and individuals on international mobility, immigration, social security and employment law for more than 30 years.

Stefan spoke with us for a full hour. You can watch the full video here, or scroll down through the four major sections below, with each sub-section jumping to the relevant part of the video:

  1. Introduction
  2. Immigration
  3. Social security
  4. Employment law

Download the full presentation deck here

1. Introduction: Brexit advice for employers

In this section, which is about 3 minutes long, you’ll learn about:

  • Stefan’s related background and what he brings to the table
  • What is Brexit?
  • The Brexit timeline
  • What’s going on now
  • The Trade and Cooperation Agreement (TCA) and its impact

2. Brexit and immigration

In this section, which is about 10 minutes long, you’ll learn about:

  • The unique situations facing UK and EU citizens leading up to 31 December 2020 and after 1 January 2021 (including important deadlines to know)
    • Right to reside and work in the EU
    • Right to reside and work in the UK
  • The Trade and Cooperation Agreement Impact
    • Specific legislations and definitions for business trips
    • Intra-Company Transfer (ICT) permit (and related residence/visa considerations)


3. Brexit and EU social security

In this section, which is about 13 minutes long, you’ll learn about:

  • Brexit and EU social security coordination:
    • Pre-Brexit, up to 31 December 2020, and new situation commencing as of 1 January 2021
  • Situation present before 1 January 2021
    • EU Regulations determine the applicable social security scheme and benefits – 883/2004 and 987/2009
    • Cross-border employment situation involving EU and UK
  • Situation commencing 1 January 2021
    • New cross-border employment situation involving EU and UK or interruption of an existing situation on 31 December 2020
    • Similar rules to EU Regulation 883/2004 and 987/2009 on the coordination of social security schemes, but important differences to know
    • New:
      • Posting of employees from EU to UK and vice versa is limited to 24 months (no general exception rule in the TCA)
      • Social security benefits (entitlement and export) and aggregation of insurance periods (i.e. healthcare, unemployment, pensions, etc.)
  • Tips for HR:
    • Assess whether the situation started prior to or after 1 January 2021 and whether it is interrupted
    • Get your A1 or E101 applied for and by the hand
    • Sort out the social security coverage entitlement for your employee


4. Brexit and employment law

In this section, which is about 13 minutes long, you’ll learn about:

  • Trade and Cooperation Agreement
    • The fate of current EU laws after 31 December 2020
      • Impact on labour law
      • EU legislation implemented by the UK is unilaterally modifiable by the UK
    • The fate of new EU laws after 31 December 2020
      • Will not be implemented in the UK
  • Employment law within the UK as of 1 January 2021
    • Changes in some areas protected by EU laws may be expected – that would be less protective for workers
      • Transfer of undertaking (dismissal protection, harmonization of employment conditions might be challenged)
      • Working time (maximum 48-hour work week)
      • Interim workers’ protection
  • Impact of Brexit on cross-border mobility
    • Rules of Rome I Regulation 593/2008 – determining the legislation applicable to an employment contract with international elements; the UK will continue to follow the principles but for how long?
    • Example scenarios and impact

We hope this Brexit advice for employers has been helpful. If you have any further questions, please don’t hesitate to ask us at [email protected], with “Brexit” in the subject heading. We’ll see if we can get them answered for you!

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