Brexit and Article 50: How can UK firms and its employees prepare?

Hakan Enver 26.10.2016

Employment lawyer, Philip Landau, raises some key questions that UK businesses and its workforce should consider before Article 50 is triggered.

The business wants to retain EU workers who are already employed in our UK business. Is there anything that needs to be done before Article 50 has been triggered?

At the moment, EU workers continue to have the right to reside and work in the UK. If EU workers have accrued the necessary five years stay in the UK to apply for a permanent residence, they may wish to do so at this stage in order to preserve their right to remain. Once Article 50 is triggered, but before the final exit, the UK will be in a transitional period. The UK would still, however, remain bound by the existing EU Treaties.
Once Brexit actually occurs, the rights for EU workers to be remain in the UK will largely depend on the decisions which have been made during the negotiation period. It is not clear at the moment how this will work.

What if the company wants to employ new EU workers after Article 50 has been triggered?

The ability to take on new EU workers will depend on when they are employed and at what stage in the process they seek to work in the UK. If Article 50 is triggered, it is unlikely that they will gain the 5 years necessary for permanent residence before the withdrawal process is concluded.

How will Article 50 affect the posting of UK workers to the EU when the employer is based in the UK?

As mentioned above, at the moment and after Article 50 has been triggered, there should be no issue with posting UK workers to EU countries. Once Brexit has taken place, employers will need to look into options including whether their workers should be applying for nationality in another EU countries (to avoid the need for work permits) or applying for an EU Blue Card  (presuming the country in question is a member of this scheme). It should be noted however that an EU Blue Card does come with very stringent conditions; it is only open to highly skilled workers and the employee would have to show that they earn a salary which is at least 1.5 times higher than the average for that country.

What about the ability of the business to post non-EU nationals within EU jurisdictions to work on a project?

The current position is governed by the “Vander Elst” concession, which states that where an employee has a UK work permit, they can be sent to another EU member state without applying for another work permit.  This would only be in relation to contracts for temporary services, however. Once Brexit occurs the UK could remove this concession entirely or employ the Swiss method, whereby those with a Swiss work permit can work in EU countries for up to 90 days per year.

Could an employer who hires low-skilled EU workers such as cleaners and waiters still be able to retain them post-Brexit?

If they have not gained the necessary 5 years for permanent residence, it would be challenging to retain them unless a provision was made for them during the negotiations. The current points based system makes employing low-skilled workers very difficult.

Philip Landau is an employment law solicitor at Landau Law Solicitors. You can follow him on Twitter @philiplandau or on LinkedIn.

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