The National Council of Rural Adviser’s (NCRA) report last November found that: “Many rural businesses are unviable without EEA workers, in particular those small and medium enterprises (SMEs) operating from within the agricultural, food & drink, hospitality and tourism sectors.”
We recently looked at the effect recent Brexit developments will have on the UK workforce as a whole. And while Brexit’s impact on workforces is a significant unknown for many UK businesses, any impact is likely to affect rural areas and businesses particularly acutely, given their reliance on workers from the EEA and, for some, the seasonal nature of that work. In this update, we recap on what is expected to happen immediately after Brexit, and consider what steps rural employers could take now to protect their workforce. Finally, we’ll take a brief look at the likely impact of Brexit on employment law generally.
The story so far
The impact of Brexit on immigration in the UK will depend on the nature of the UK’s new relationship with EU. In the event of a ‘hard’ Brexit, the UK would have greater control of its borders, and we’d expect to see an overhaul of the current immigration system which could see EEA nationals facing the same restrictions as those from outside the EEA. If the UK joins the EEA and/or European Free Trade Association (EFTA) workers would retain the right to free movement throughout EEA nations. As a condition of membership, it is likely that the UK would remain bound to comply with EU employment law.
While the long-term consequences of Brexit remain unclear, recent announcements have given employers some short-term comfort. In December 2017, the UK Government announced that EEA nationals residing in the UK on 29 March 2019 will be eligible for a new ‘settled status' if they have been resident in the UK for a minimum of five years. EEA nationals who have been in the UK for less than five years will be granted a temporary status, giving them the right to remain until they reach the five year mark. The registration scheme is expected to be available from the end of this year and the government has confirmed its intention that the application process will be streamlined and straightforward.
More recently, the UK Government has announced its intention that the rights of EEA nationals to enter, reside, and work in the UK will also continue during a post-Brexit ‘grace period’ of up to 2 years. EEA nationals entering the UK during this time will be required to complete a registration process if they plan to remain in the UK for more than 3 months, and will then be permitted to remain in the UK for the five years required to obtain settlement.
While these announcements bring welcome comfort to UK businesses employing EEA nationals on a long-term indefinite basis, difficulties remain for businesses that employ EEA nationals who come to the UK to work on a seasonal basis before returning to their home country. These workers may find themselves subject to the new immigration rules if they are outside the UK when the ‘grace period’ ends and/or have too many gaps in UK-residence to qualify for settled status.
What steps should agricultural employers be taking to mitigate the impact of Brexit?
The UK Government has stated that it is aware of the scale of the issues facing the sector and has highlighted that it wants to seek a flexible migration policy overall including access to seasonal agricultural labour. A case has also been made for a specific Seasonal Agriculture Workers Scheme to be put in place to support the farming sector to access foreign labour post-Brexit.
The NCRA’s interim report make a number of recommendations aimed at nurturing a ‘home-grown’ rural workforce, although it is clear that government support for such initiatives would be essential.
Their recommendations include:
- considering how to attract and retain home-grown talent to meet the needs of rural businesses;
- overcoming connectivity barriers (public transport, roads, broadband, mobile internet and even mobile signal in many instances) to attract labour (and retain young people) into rural areas; and
- promoting opportunities for people to work remotely and basing more businesses in rural areas.
While we remain in a time of uncertainty, our advice to rural clients who employ EEA nationals is to get prepared as best you can:
- audit your workforce: how many EEA nationals do you employ permanently or rely on to work for you seasonally?
- consider the options: do any of your workers qualify for British citizenship now; or will they qualify for temporary or settled status?
- think ahead: consider what ‘home-grown’ options may be viable if access to EU labour is restricted.
What about employment law in general?
From an employment law perspective, Brexit won’t lead to overnight changes. During the leave/remain campaigns there was considerable debate about the restrictive nature of EU law and the level of freedom the UK would have to change its laws, in the employment field and others. In reality, a number of the rights and benefits enjoyed by UK workers are themselves ‘home-grown’. While the EU sets out minimum rights for workers in all member states, in many cases the UK has chosen to provide enhanced rights for UK workers.
For example, Europe guarantees workers 4 weeks’ holiday a year, while the UK minimum is 5.6 weeks. Similarly, the EU only guarantees 14 weeks’ maternity leave; whereas the UK provides for 52 weeks. Where we may be more likely to see changes in the employment sphere will be in the interpretation of our laws. The UK is currently bound by the decisions of the European courts, so assuming this will not be the case post-Brexit we may see changes to how are laws are applied in practice without EU influence.
Article contributor: Sarah Leslie, solicitor