2020

As the UK’s membership of the EU comes to an end at 11pm tonight, employers have been told to expect continued uncertainty over the coming months and the government continues to negotiate its future relationship with the bloc.

The official Brexit day comes at the end of a busy week for immigration policy, as the government yesterday published the details of its new ‘fast track’ visa, which replaces the current Tier 1 Exceptional Talent scheme, in effect expanding it to include scientists, researchers and mathematicians.

The government said under the new Global Talent scheme, as it is known, scientists and researchers will not be required to have an offer of employment before arriving in the UK and will provide an accelerated path to settlement for all individuals who are endorsed on the route.

This will allow higher education, research institutes and eligible public sector employers to recruit talent from abroad after Brexit.

The new scheme will also remove the cap that the current Tier 1 scheme has, although critics have pointed out that the Tier 1 visa cap was never reached. The scheme will open on 20 February.

Chetal Patel, partner at Bates Wells, said the timing of the Global Talent visa was “pivotal” as the UK leaves the European Union. But, she said it was still unclear if employers would see the new route as a long-term solution or simply a PR exercise.

“While this latest development is welcome news for some, questions remain as to how Whitehall will create a fully functioning immigration system by January 2021 – a tall order given the time and resource which will be spent during the transitional period,” she said.

Yesterday’s changes are part of the initial phase of wider reforms to the UK’s immigration system post-Brexit, which the government has said will include an Australian style points-based immigration system.

Earlier this week the Migration Advisory Committee (MAC), the government’s migration advisors, put forward its recommendations for the UK’s future immigration system, calling for an overhaul of the Tier 1 visa and for the salary threshold for migrants to be dropped from £30,000 to £25,600.

Gerwyn Davies, senior labour market analyst at the CIPD, said the broad direction of the MAC’s suggestions and the introduction of the Global Talent visa was welcome news for employers. 

But, he said many employers were still ill-prepared for the introduction of restrictions for EU citizens. “This is partly because there remains uncertainty about the government’s post-Brexit immigration policy, especially in terms of the Australian points-based system that has been heavily publicised by the new Conservative administration,” he said.

“While employers can be forgiven, on the one hand, for not preparing because of this uncertainty, it is extremely likely that the proposals in the [December] white paper will become law,” He added.

Gillian McKearney, head of UK Immigration at Fieldfisher, said the coming few months would be critical for employers, especially those with large numbers of EU nationals, to ensure they have a process in place to manage the right to work status for their EU employees.

She said  that while the government’s EU Settlement Scheme did provide a route for EU citizens currently living in the UK to stay beyond Brexit, recent figures suggest up to 1 million eligible people have yet to apply to the scheme.

“This is something to take into consideration, and business management should take on the responsibility of encouraging and supporting their EU employees to apply to the EU Settlement Scheme and tracking those who do not wish to,” McKearney said.

Staff shortages can be dealt with by training the 8.5 million people who are economically inactive. The BBC's Reality Check team look into how valid this claim may be.

Many of those people are students, carers, sick or retired - and fewer than two million of them say they would actually like to have a job.

Home Secretary Priti Patel was asked on the BBC's Breakfast programme about the ways in which businesses might be able to deal with staff shortages under the government's new immigration system.

"We have over 8.45 million people in the UK aged between 16 and 64 who are economically inactive," she said.

"We want businesses to invest in them, invest in skilling them up."

Economically inactive people are:

• not employed - they do not have a job
• not unemployed - they have not looked for a job in the past four weeks and/or are not available for work in the next two weeks

The latest Office for National Statistics (ONS) figures show 8.48 million 16- to 64-year-olds are economically inactive, so the home secretary is right on this.

The ONS breaks down some of the reasons they fall into this category.

The biggest category is students, who account for 27% of the inactive. They may be able to take on part-time jobs, but could not be relied upon to deal with the staff shortages that some business groups have warned about.

Another 26% of the inactive population count as sick - almost all of whom are long-term sick.

Next up, 22% of the inactive are those who are looking after their homes or caring for family members.

The fourth most common reason for economic inactivity is people who have retired before the age of 65 - that's 13% of the total.

There is a very small category - less than half a percent - who describe themselves as "discouraged workers".

The last 11% are classified as "other", which includes people who say they have not yet started looking for work, those awaiting the results of job applications and some who say they do not need to work.

The ONS says that of the 8.48 million economically inactive people:

• 6.61 million do not want a job
• 1.87 million would like a job

So those 1.87 million could be targeted by businesses seeking to invest in their skills - although there may be various reasons why they are not currently looking for work.

TV presenter Alastair Stewart recently resigned over ‘errors of judgement’ on Twitter. The ITV stalwart had tweeted an obscure quote from the Shakespeare play Measure for Measure in which he referred to a black man as an ‘ape’. 

This is just one case that clearly demonstrates the risks of social media for businesses. There is no doubt social media has revolutionised the way people communicate. And with people increasingly creating and sharing content online, the nature of that communication has changed too. 

However, as people use social media both inside and outside of the workplace, this can present a unique set of challenges for employers and places greater importance on businesses adopting social media policies.

The way in which employees use social media carries risk for any business.  These risks include reputational damage, employees posting defamatory or discriminatory work-related comments for which their employer is potentially liable, the disclosure of confidential information – which could include commercially sensitive information belonging to the business – and infringement of third-party intellectual property rights. So it is imperative for businesses to put effective social media policies in place. 

The Alastair Stewart incident is just one of many high-profile cases reiterating the importance of ensuring a social media policy is well thought through. For example, the case of Crisp v Apple Retail UK saw an Apple employee dismissed for posting several negative status updates on Facebook concerning the company and its products. Mr Crisps’ subsequent dismissal was found to be fair on the basis that Apple’s policy had been clear on the consequences of social media misuse.

In contrast to the Apple case, an employment tribunal found that an Asda employee posting she’d be “happy to hit customers on the back of the head with a pick-axe” were not enough to warrant dismissal, as one of the factors was Asda’s policy. The Walters v Asda Stores case highlighted the importance of clearly setting out the consequences of posting harmful comments in a social media policy, especially those types of behaviours for which an employee could be dismissed. 

Similarly, in 2010 a pub manager who had been on the receiving end of verbally abusive comments from customers, later posted about these on Facebook. Because Wetherspoons had a clear policy on the consequences of inappropriate comments posted on social media, dismissal of the pub manager in the Preece v JD Wetherspoons case was found to be fair. 

While the outcome of any case depends on the facts, the content of a social media policy will be important if a business has to take action and enforce this. The types of clauses that should be mentioned include: rules about accessing social media sites while at work; information about any monitoring of employees’ use of social media in or outside the workplace; an outline of any prohibited use of social media; guidelines for employees required to use social media for business; and the details on the consequences of breaching the policy.

In today’s ever-changing landscape, where employees use of social media outside of work can give rise to risks, it is important to implement a social media policy tailored to the specific needs of a business. However, it doesn’t stop there – companies must also take steps to communicate the policy to employees. If businesses fail to understand the rapidly changing social media landscape we are now part of, they will fail to keep up.