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The impact of Brexit on mobile employees

Employers need to consider a number of issues with regard to their mobile employees - whether UK individuals working in Europe or EU/EEA employees working in the UK.

The UK has ceased to be a member of the European Union on 31 January 2020 and has entered a transitional phase, which will last until the end of this year. During this transition period the UK continues to apply EU law, continues to be a member of the single market for goods and services, the customs union as well as allowing the free movement of people.

Employers should now consider several issues in relation to their mobile employees – whether UK individuals working in Europe or EU/EEA employees working in the UK. Specific steps in this regard include:

UK Employees in Europe

You need to ensure that your UK employees in Europe are informed of the issues that arise for them including:

  • The EU Settlement Scheme and local country rules (for British citizens already living in the EU);
  • The limitations of the EU’s proposed ‘temporary leave to remain’ arrangements.

Assess the impact of Brexit on existing and planned assignments

For example, is there any value in bringing the start of planned assignments forward – i.e. so that they start before the 31 December 2020. This should, for example, help ensure assignees (whether to the UK or from the UK to the EU / EEA), have existing working rights in that other location without the need of obtaining visas / work permits etc.

Other issues to consider include:

Will EU citizens presently in the UK lose their on-going UK residency rights by accepting an overseas assignment? Would it be possible to ‘restructure’ any planned assignments, by reducing the length of the assignment, for example, so that indefinite leave to remain rights in the UK are retained?

Is it worthwhile ending existing assignments (e.g. for UK individuals who have been living in other EU / EEA states before their international assignments) before 31 December? Otherwise, would individuals in this situation lose their rights to return to their ‘home’ country from an employment perspective? Companies will need to consider the policies of individual EU / EEA countries in this regard.

What about the UK residency status of those EU citizens with a UK employment contract who are already on assignment’s overseas? Again could it be appropriate to try and end their assignments before 31 December, so that they can return to the UK without any issues? In this regard, one should note that EU citizens with a UK ‘permanent right to remain’ status, would typically lose that status, if they are overseas on assignment for a period of more than 2 years.

Short term business visitors

In practice, one would hope that even with a no-deal Brexit little ‘paperwork’ would be required with regard to genuine ‘business trips’ – whether that is for UK employees going to the EU or EU employees coming to the UK. However, employers should that they understand in advance about the nature of any planned business trips and recognise the difference between:

  • Legitimate business trips – i.e. something which should not require a work permit or visa;
  • Individuals undertaking ‘work’ in the other jurisdictions and hence subject to what might be a lengthy and expensive visa application process. The costs (time delays and additional financial outlay) should be closely considered by businesses when budgeting for new projects, for example.

Summary

Whilst companies of all sizes (and in particular SMEs) have often delayed making proactive plans in respect of Brexit, given the uncertainties that exist in this regard about exactly what any formal agreement / position will look like, the fact that the 31 December deadline will rapidly approach means it is important for companies to now pro-actively review their options and next steps in this regard.

The risks of continuing to wait could result in significant ‘issues’ for employees (which may be expensive and time-consuming to resolve) and which hence represent a real threat to their employers and the relevant HR teams.