How prepared is the eCommerce sector for the staffing implications of a no-deal Brexit?

With less than a month to go until exit day, time is very much running out for industries to prepare for a no-deal Brexit. With the numbers of EU nationals migrating to the UK declining rapidly, the challenge faced by the eCommerce sector is to maintain access to labour. The issue is particularly acute for the sector as it requires staff from differing income and skills levels in order to operate effectively.

As the Government has been slow to acknowledge the risk of a no deal Brexit, the main problem for eCommerce employers has been simply to find out how they can employ EU workers from 30 March 2019 if we leave the EU without agreeing terms. Thankfully, some clarity has now been provided.

First the good news. All EU nationals and their family members will be able to live and work in the UK long-term whether we get a deal or a no-deal Brexit. The Government has guaranteed that anyone residing in the UK by exit day on 29 March 2019 will be able to stay for up to five years to apply under the newly created EU settlement scheme for ‘settled status’. This allows them to stay indefinitely and ultimately apply for citizenship.

For EU nationals who arrive after 29 March the situation is less rosy. EU nationals will be able to enter the UK largely on the same basis as they do now and stay for up to three months. During this time they will be able to work and take a job with a UK employer simply by presenting their passport or national ID card.

However, if they want to stay in the UK beyond three months they will have to apply for a new residence permit called ‘European Temporary Leave to Remain’. This will be temporary as it will only be valid for three years, non-extendable and will not allow them to stay long term. At the end of the three year period, EU nationals who wish to remain in the UK to work will need to qualify under the new UK immigration scheme which will be in place from January 2021.

Initially then, at least staffing levels should be maintained as workers from the EU will still be able to take up posts after 29 March 2019 largely on the same basis as they do now. However, once they realise that settlement is not an option for them, many workers may consider other EU states as better options for employment where long-term residency rights are on offer.

Most importantly, the eCommerce sector urgently needs to consider the implications of the new immigration system which will be in place from January 2021. The Government intends to create a unified immigration system for EU nationals and non-EU nationals that will be skills based. In effect this will be a work permit system, an extension of the current Tier 2 system, which will require a worker to have a job offer from a company with a sponsor licence for a role which is high or medium skilled and potentially paying above £30,000 a year.

For industries like eCommerce which relies on a ready supply of low skilled workers, questions need to be asked now about how it will source labour in the future. A temporary one-year low skilled worker visa is being proposed as an interim measure to allow industries to adapt, but this will only be a stop gap. The political intent is to make it harder for UK businesses to access migrant labour and workable solutions are needed to avert the potential staffing crisis which is looming on the horizon.

Employment rights

So what will happen to the employment rights of people working in eCommerce if the UK leaves the EU with no deal? After all, a huge amount of UK law originates from EU regulation, including discrimination, maternity rights, TUPE and working time.

The simple answer is ‘not a lot’ (at least in the short term).

If no-deal on Brexit is reached, the European Union (Withdrawal) Act would preserve EU-derived employment laws under domestic law.

In the longer term, the UK will have scope to reform those laws. However, any changes will probably be modest, as the Government has repeatedly committed itself to preserving (or even enhancing) employment protections after Brexit. There will be no “bonfire of EU red tape” and employees will likely enjoy the same employment rights and protections after Brexit as they do now.