Talking SME Podcast: How Does Brexit Affect Your Recruitment Practices?

Kimberley Whalen-Blake, Director at Hughes Paddison Solicitors shares her knowledge and top tips in our podcast ‘How does Brexit affect your recruitment practices?’. She discusses how Brexit and the ending of Freedom of Movement for EU nationals might affect your business in terms of staffing and recruitment.

A bit about Kimberley

Kimberley specialises in all areas of employment law, with over 10 years’ experience in her field. She represents both employers and employees in employment tribunal proceedings, including conducting the advocacy. This has given her a hugely advantageous aspect, enabling her to gain considerable insight into how the Tribunal conduct the cases in practice.

Kimberley draws on this experience when preparing her cases, presenting them in the most advantageous way for her clients. She has advised on and litigated all aspects of employment law, from unfair dismissals, TUPE, redundancies and restructures, to lengthy and complex discrimination and whistle-blowing cases.

Kimberley provides regular advice and assistance on corporate support work and also provides a range of HR support services to SME businesses. She ensures they are up to date with the constant evolution of employment law, and helps them best protect their business in what can be a very complex area of law.

She has previous experience as department head of a 33 strong team. This means she is well aware of the challenges faced in running a productive, profitable and efficient workforce. And the constant need to be juggling the management issues that comes with being an employer.

In order to gain a greater insight into challenges her commercial clients faced and to assist in the provision of supporting the HR function, Kimberley undertook a level 7 CIPD Human Resources qualification. Kimberley remains a member of the CIPD institute and regularly keeps herself informed on HR developments.

Outside of the workplace Kimberley enjoys spending time with her two children, particularly doing outdoor activities. She also loves travelling and exploring cultures far and wide. Kimberley is a school governor at Our Lady of the Rosary and also a trustee of local charity, The Hollie Gazzard Trust.

Here are some useful resources for business leaders, provided by Kimberley:

Pre-Employment Checks – Guidance for Organisations – CIPD

Employers’ Legal Guide to Post-Brexit Immigration – CIPD

Employing Migrant Workforce Guide Flowchart – CIPD

Business Tax – IR35 detailed information – GOV.UK

Check Employment Status for Tax tool- GOV.UK

Employment Status Factsheet – CIPD

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‘How Does Brexit Affect Your Recruitment Practices?’ is just one of in our series of podcasts where we talk about a wide range of topics. We talk with business experts, and also offer broad insights to help SMEs become more successful.

Don’t forget to check out our other Talking SME Podcasts here.

Transcript

Tracey Adams (00:01):

Hello, and welcome to talking SME our quick fire chats with business leaders. I’m Tracey Adams. And, today I’m pleased to welcome Kimberley Whalen-Blake, Director at Hughes Paddison Solicitors, they are a leading legal practice in Cheltenham. Welcome Kim.

Kimberly Whalen-Blake (00:19):

Hello, thank you for having me.

Tracey Adams (00:21):

You’re welcome. So I think it’s fair to say that businesses have been fully focused on dealing with the COVID pandemic for the past year. Um, trying to work out how to run their businesses remotely, get their heads around furlough, manage any additional needs of their staff, but yet in the background, of course, Brexit has happened and since January the first of this year, the freedom of movement for EU nationals has changed.

So many businesses probably haven’t been in a position to recruit recently, due to the pandemic but as business picks up and recruitment increases, this may be a good time now to recap on the main points to be aware of when recruiting so pleased, delighted, you could join us to help us with this. So should we start with our questions?

Kimberly Whalen-Blake (01:16):

Yes.

Tracey Adams (01:17):

Right. So let’s look at our existing employees. So if a business already employs EU citizens, should they have already taken any appropriate action?

Kimberly Whalen-Blake (01:28):

Yes. So first and foremost, you always have to look at your own house before we even get to the point of recruitment. So it is a very good starting point. Because of the pandemic, there has been a little bit of leniency there and employers do have up until 30th of June to make sure that any of their EU nationals have either applied for settled status, or pre settled status.

So first and foremost, the easiest way to go about this is to just do a HR audit on your people. So who have you got employed there? Do you have any EU nationals working for you, any citizens working for you, or EEA or Swiss nationals working for you? As it covers them as well. And, and if so, you really need to be reaching out to them. Find out how many are affected, drop an email around and ask them to contact a designated contact, because they’re probably going to be worried about it themselves.

Tracey Adams (02:30):

Yes. Okay, great. That’s brilliant, thank you. So in terms then, so if that’s keeping your house in order. So in terms of recruiting new employees, what are the main changes to be aware of now since January 1st?

Kimberly Whalen-Blake (02:48):

So obviously from January 1st you don’t ,because the free movement of people has now gone with Brexit, you don’t have the easier way of, of being able to recruit people just as you would with UK citizens and you have to check. The fundamental point is you have to check that they have a right to work here in the UK. And if they don’t have a right to work here in the UK, it will be an illegal contract. And it also comes with possible ramifications for obviously employing somebody that doesn’t have a right to work here.

So first, first and foremost, if they are EU citizens and they are already residing here in the UK, they have up until the 30th of June to apply for settled or pre settled status. Settled status is for those that have lived here continuously for five years, pre settled status is those that don’t make that threshold.

Kimberly Whalen-Blake (03:45):

And then they are subject to the application being successful, given a maximum of five years to get that continuity of service. So if you have them and they’re already residing here, it’s a much simpler process. You can go on to .gov and there is a link in which they can click and it just takes them through that process. And as soon as they’ve got that application, so your responsibility as the employer is obviously to check the paperwork and make sure that they do have that application.

You need to keep your checks in place. And you’re good to go. Now for those that are not already residing here and cannot apply for settled or pre settled status, we are back to what it was before, the free movement of nationals. And you are really looking at recruiting them based on, either them having a visa.

Kimberly Whalen-Blake (04:38):

And there are limited visas to be honest, most of them are related to family ties, where they can be supported by their family or ancestry. So for any of our Commonwealth countries, if you had a grandparent that was a British citizen you can get a visa that way. If they can’t get a visa, then you are looking at basically sponsorship and a points based system. So if you need a skilled worker, it is possible, but you would as the employer basically be sponsoring that, and there is a whole process with that. You need to obviously make sure that they fall within the definition of a skilled worker. And those are people that are educated above A level positions. So won’t be for any of your GCSE positions, they need to have a minimum wage.

Kimberly Whalen-Blake (05:32):

Minimum wage, I think is around about £26,000. And you need to show that you have a genuine vacancy for that role. And then, like I said, it’s works on points. It’s 70 points per person. There is set criteria for those points and you have to go through that process. Once you know, that they fall within that definition, you then have to apply as the employer for a sponsor license. And that is not a quick process. So you have to be really sure that you definitely do want to recruit somebody that doesn’t have their right to work here in the UK.

Generally for my clients, they wouldn’t do it if it’s a one-off hire, we’re looking more at the SMEs that use it as skilled labour. So you probably wouldn’t be doing it as a one-off . The process lasts for about four to eight weeks. You have to supply loads of documents to the home office to show that you have the ability to track and monitor the sponsored population, that you have the allocation of free critical roles within the organization, that’s an authorizing officer, a key contact and a level one user. And what the level one user basically is, is they have reporting duties to the home office, because if you are granted that sponsorship license, basically the home office pass all of the due diligence on to the employer. And then they don’t really get involved.

So you’re taking on a lot of responsibility there, and there is a cost to that as well. And, and the cost is £1,476, unless you are a small business, and then you get a reduced fee at £536. You also get that reduced fee if your business as a charity.

Tracey Adams (07:20):

Okay, great. So that sounds to me like it’s probably rare that businesses go down that route.

Kimberly Whalen-Blake (07:28):

It’s not rare Tracey, I mean, unfortunately as a result of not just only the pandemic, but we’ve seen it for many years before, there is a real skill shortage here in the UK. And so for some businesses, particularly where it is a lot of technical expertise or professional expertise, they have no other option, but to go down this route.

Tracey Adams (07:53):

Gosh. Okay. Well, that’s interesting. Thanks, Kim. And then what are the possible consequences if a business employs someone unlawfully, which we hope they don’t.

Kimberly Whalen-Blake (08:04):

That is unfortunately where the drawback is because the home office does a lot of passing the buck, so to speak, on to the employer, they do need to make sure that they have their due diligence there. Now, the home office, for genuine mistakes and particularly because of the pandemic and the fact that these changes have only just taken place – there is some leniency there for genuine mistakes, but the workforce you know the work, the employer must ensure that they can show that it’s a genuine mistake. And so you’re not going to get over that hurdle, if you don’t have your audit of the staff that you’ve got working for you and copies of the paperwork and that you’ve sought to verify their idea of right to work.

So you can’t be blase about it. And if, unfortunately you do find to be employing people that don’t have the right to work here, there is a fine of up to £20 K. There is obviously criminal charges that can be attached to that. And then, then the biggest one, which is usually the one that’s the hardest hurdle to come over is the reputational damage that, that causes. So you have to be really wanting to do it and also knowing what, what the obligations are on you or on the business as a sponsor.

Tracey Adams (09:20):

Yes. And just going back to, I suppose, a very early stage in the process that lots of businesses might not be doing correctly and has always been the case, but you know, in terms of what documents or checks they should be making right at the very start when applications come in, you know, has anything changed with that since January.

Kimberly Whalen-Blake (09:43):

Not really and you know, we do it even for UK nationals. So if you don’t have it in your recruitment processes already definitely take heed to this piece of advice, because it is more than gesture, your EU nationals. You need to be verifying ID. Now, quite a lot of people ask candidates to do that on the interview stage before they even do the job offer.  But certainly before they start employment, you need to be getting copies of their passport, getting them certified, proof of addresses and keeping it in the HR file.

I know it’s the age old thing that, you know, it’s the paperwork and all of the checks and balances that are required. But if you’ve got those fundamental basics in place, the chances are that if you have, because the home office is not going to expect an employer to be able to spot forged documents or have issues like that.

Kimberly Whalen-Blake (10:39):

And there is a system in which you, if you do have any concerns, you can run a check, a HR check on, on employees. So, and I think it costs maybe about £12 pounds. It is a low cost. If you did have any concerns about a specific employee, but the fundamental basics, just as you do for nearly everything nowadays, we have to supply a passport and a utility bill, pretty much the same here for this, and just put it on the HR file. And then if you do fall foul, you’ll get a lot more sympathy from the home office.

Tracey Adams (11:11):

Yes, that’s great. So that was all good advice. Have you got one final piece of advice that if a company’s got any concerns about any of this? The one takeaway, you’d say, what’s the most important thing to think about.

Kimberly Whalen-Blake (11:26):

Yeah. I mean, I always say that, look, if you’re concerned, even if it transpires that you didn’t need to be worrying about that.  Just pick up the phone and get some advice because you know, it is so easy for somebody like myself or another employment or immigration specialist to be able to very quickly tell you what you need to do. Or if you’re worrying needlessly about something. So I’d say pick up the phone, don’t be scared. Don’t be worried that somebody will think that you’re silly, pick up the phone and we would be able to pinpoint you in the right direction.

Tracey Adams (12:03):

No, that’s brilliant. Thank you. Thank you for all of that. I know it’s a huge topic. It could be a huge topic and particularly the points based system.

Kimberly Whalen-Blake (12:13):

It is, and Tracey if it helps your members I’m more than happy to provide you with some crib sheets and things like that.  Some useful resources that they can go to.  And when I say that I don’t mean lawyer talk, we, use handouts from, you know, like the CIPD, which is the HR Institute.  So they’re all in real, you know, understandable English rather than looking at like the immigration act and things like that.  We won’t send that, but if it’s helpful, I can send some useful resources so that they at least have a starting point.

Tracey Adams (12:45):

Yeah. That would be brilliant. And we can signpost that from all the communications we do around this podcast. So that’s fabulous. Thank you, Kim, for joining us, it’s been an absolute pleasure talking to you.

Kimberly Whalen-Blake (12:56):

More than welcome.

Tracey Adams (12:58):

Thank you. And if you’re listening, I hope you’ve enjoyed talking SME and look out for future episodes coming soon.