Heads HR Update – Brexit

16th December 2020

We know that this has been a difficult year for everyone and Schools have borne a huge responsibility to support children and young people in ways that none of us had considered before. We are also well aware that you’ll be feeling swamped in the ‘ever-changing’ world of Covid-19 but sadly there is another big change on the horizon that we did know was coming…Brexit!

We did debate whether you needed this before Christmas but felt it was important to make you aware of these changes that come into force on 1^st January 2021…but be reassured that Heads HR will be here to support you through another myriad of changes that will need to be considered.  The update below provides you with some of the key changes that you need to be aware of on your return from, what we hope for you all, will be a peaceful and enjoyable Christmas break.

Settled or Pre-Settled Status

The UK left the EU on 31 January 2020. A transition period applies until 31 December 2020, during which time EU laws, including the right to free movement within the EEA, continue to apply to the UK.

The main issue concerning HR is the impact of Brexit on their European workforce in the UK and on future recruitment. EEA nationals in the UK by 31 December 2020 are entitled to apply for settled or pre-settled status, giving them the right to stay indefinitely.

Currently, qualified teachers from the European Union (EU), European Economic Area (EEA), European Free Trade Area, (EFTA) and Switzerland have the right to have their professional status and qualifications considered for the award of Qualified Teacher Status (QTS) in England.

More details can be found on the Government’s Qualified teacher status web page.

If employees have lived in the UK for a continuous five-year period, they will be entitled to settled status. If they have lived in the UK for less than five years, you will be entitled to pre-settled status.

Further details of the Scheme can be found at the Government’s Apply to the EU Settlement Scheme web page.

Action required: You should be encouraging any employees to apply under the settlement scheme if they have not already done so.  The deadline for applying to the Scheme is 30 June 2021. The Scheme is free to apply.

Recruitment

The UK will introduce a points-based immigration system from 1 January 2021 which will change how you employ teachers who are not UK or Irish nationals. All overseas nationals arriving in the UK from 1 January 2021, including those from the European Economic Area (EEA) and Switzerland, will come under the UK’s points-based immigration system. Most of the new immigration routes are now open for applications and employers can prepare for these changes now.

Irish citizens will continue to be able to enter, work and study in the UK as they do now.

Recruit teachers from overseas
https://www.gov.uk/guidance/recruit-teachers-from-overseas#what-will-change-from-1-january-2021

View a job applicant’s right to work details
https://www.gov.uk/view-right-to-work

Action required:

You will need a sponsor licence to hire a teacher from overseas on a Skilled Worker Visa.  You can check if you are already a licensed sponsor. If not you can become a licensed sponsor by following this step-by-step guidance. This guidance covers further information about being a sponsor, including your responsibilities.

You will need to request a ‘share code’ when appointing overseas staff to check their right to work in the UK.

Safeguarding Checks

From 1 January 2021 professional regulators in the EEA will no longer share information about sanctions imposed on EEA teachers with the Teaching Regulation Agency (TRA) instead, teachers will be asked to provide a letter of professional standing.

From 1 January 2021 the Teaching Regulation Agency will no longer maintain a list of EEA teachers with sanctions.

Candidates from overseas must undergo the same checks as all other staff in schools, including obtaining an enhanced DBS certificate with barred list information. This still applies even if the candidate has never been to the UK.

When recruiting, schools:

• must follow part 3 of Keeping children safe in education (KCSIE) statutory guidance, which sets out the safer recruitment checks schools must conduct.
• must make any further checks they think appropriate so that relevant events that occurred outside of the UK can be considered – the Home Office provides guidance on criminal records checks for overseas applicants.
• should, until 1 January 2021, check for teacher sanctions or restrictions imposed by an EEA professional regulating authority.

For applicants that have lived or worked outside of the UK, schools must make any further checks they think appropriate so that relevant events that occurred outside the UK can be considered, including obtaining an enhanced DBS certificate with barred list information (even if the teacher has never been to the UK).

Teachers will be requested to provide proof of their past conduct as a teacher. This should be a letter of professional standing issued by the professional regulating authority in the country in which they worked. Such evidence can be considered alongside other information obtained through other pre-appointment checks to help assess their suitability.

Safeguarding checks for teachers from overseas
https://www.gov.uk/guidance/recruit-teachers-from-overseas#safeguarding-checks-for-teachers-from-overseas

Changes to checks for EU sanctions on EEA teachers from 1 January 2021
https://www.gov.uk/guidance/changes-to-checks-for-eu-sanctions-on-eea-teachers-from-1-january-2021

Action required: Update your safeguarding processes to ensure that the relevant checks are undertaken when recruiting overseas staff.

Brexit and Impact on Employment Law

Much UK employment law originated from EU law but the UK’s withdrawal from the EU is unlikely to have an immediate impact on employment law. When the transition period ends on 31 December 2020, existing EU law will be converted into domestic law. Most EU Directives are already implemented in the UK by regulations or Acts of Parliament; for example, the EU equality Directives are implemented by the Equality Act 2010. It will be for Parliament to decide whether to retain, amend or repeal domestic legislation.

There are many people speculating about changes that may be made after the transition period however for now no final decisions have been made.  What we do know is that many areas of domestic law that are derived from EU law have been influenced by decisions of the European Court of Justice (ECJ), for example working time, TUPE and discrimination law. Under the European Union (Withdrawal) Act 2018, UK courts will not be bound by decisions of the ECJ made after the transition period ends on 31 December 2020 which gives the Government the power to make regulations allowing lower courts and tribunals to deviate from existing EU case law.

Action required: No action needed.  Your HR Consultant will keep you up to date with any changes that impact on your school.  However, if you have any specific concerns or questions please let us know.

If you have any questions or queries about this update or any other HR matters then please give your HR Consultant a call on 0161 850 4343 or drop us an email.