19 March 2019 - Article
Just as the word Brexit, which didn’t exist three years ago, is now one of the most used in the English language (at least in newspaper columns and social media), so the legal, political and economic uncertainties associated with it have become a feature of daily life that we almost take for granted.
I say almost, but I have also lost count of the number of people who have expressed anxiety about the unstable state of public affairs and the difficulties this is causing in their business and personal lives. Commonplace, which Brexit uncertainty has now become, does not mean pleasant or easy to manage.
As an employer, you will no doubt be preoccupied with your own Brexit headaches, which may include serious worries about supply chains, transport, tariffs and the breakdown of the administrative systems that support commerce. If you are in the service and knowledge industry, you may be equally concerned about how you will find the talented staff you need for your businesses to thrive in the future.
Just as preoccupied parents may suddenly find their children running amok, if, as an employer, you do not spare time to think about the impact of Brexit uncertainty on your staff, you may find yourself with a whole new set of challenges. Falling morale can lead to higher incidences of mental and physical ill-health, resignations (often by the very people you most want to keep), declining performance and disengagement.
This will not be a good starting point if you find your business needs to make difficult decisions, fast. A business that decides that the only way to continue viably is to move some or all of its operations overseas, for example, will need the understanding and co-operation of its employees. Acknowledging that employees might themselves have worries – such as the viability and long term health of the business, the erosion of their legal rights or the immigration status of themselves and their families post Brexit – and talking to them about their concerns and offering support, will go a long way to ensuring that your staff remain engaged and connected to the business.
There is evidence that relocation is a route employers are taking in increasing numbers. If your business has decided to relocate, there are a number of legal challenges to deal with. In addition to the obvious questions about immigration status and entitlement to work in other jurisdictions, some of which are unfortunately also complicated by Brexit, you will need to think about some or all of these issues:
- Is there a contractual right to relocate the staff you wish to move? If not, you may need to offer incentives.
- Do you have a relocation policy and does it provide for financial support for staff?
- How much notice are you proposing to give? Even if there is a contractual right to ask staff to work overseas, the contract needs to be operated reasonably. This means consultation – having a discussion with your employee about logistics and timing and appropriate practical and financial support.
- Have you taken advice about the law that will apply once your employee has moved and where any rights that arise can be enforced, either during employment or on termination? Unfortunately Brexit complicates those questions too.
- What about protecting your business once staff are working outside the UK? What rules will apply in relation to confidential information, intellectual property and post termination restrictions?
- Relocation may take more than one form. In an era of agile working, your employee’s base location may move to another country, they may begin to work from home in another country or cease to have a particular base anywhere and work peripatetically. What rules will apply then?
Dealing with these questions is likely to involve taking legal advice in the destination country as well as the UK. So, whilst we wait for some resolution, you may want to take the time to consider the options carefully – with your staff – and collectively face whatever the future may bring together.
If you would like to discuss any of the issues raised by this article please do not hesitate to contact us. Withers’ global network of offices and connections with advisers across the world can help you to consider your options whatever and wherever they may be.