Post-Brexit recruitment realities
Author: Nick Martindale
The new post-Brexit immigration system comes into force in January 2021, but employers need to start making plans now to ensure they are able to access the talent they need. Nick Martindale reports.
With the UK's immigration system for the post-Brexit landscape now established, the thoughts of HR and legal teams should be turning to how recruiting employees from overseas might work in practice. For many businesses, the starting point will be to apply for a sponsor licence; something that needs to be done as soon as possible if it is not to impact on hiring plans.
"A sponsor licence can be applied for before making a job offer," says Jonathan Beech, managing director of Migrate UK. "In fact, should the employer have a genuine vacancy that, from January 2021, meets the minimum skill requirements, a licence can be requested at any time if it believes that the vacancy is not guaranteed to be filled by a settled worker. This is highly recommended as the process can take two or more months to finalise, and longer during the coronavirus (COVID-19) pandemic."
Research by A Y & J Solicitors earlier this year found only around 3% of actively trading employers in Britain were on the list of businesses approved to hire overseas workers, equating to only around 30,000 businesses in all.
"It is possible that the complexities of coronavirus and the extra applications submitted in the run-up to the new system coming into force from January 2021 may cause delays, so it is advisable that businesses wishing to employ workers from overseas apply for sponsor status now," says Yash Dubal, founder of A Y & J Solicitors. There are also a number of other protocols the Home Office will expect to be in place, he adds, including having the correct management systems and a dedicated member of staff to manage the reporting process.
Sharmila Mehta, immigration and nationality partner at Keystone Law, urges organisations to ensure they have all the supporting documentation ready before submitting the online application. "There is only a five-working-day window from online submission to getting the documents to UK Visas and Immigration," she says. "It's best to send in certified documents, rather than originals. This all takes time and planning. Additionally, bear in mind that organisations wishing to apply for an intra company licence will need to prove the link by common ownership between group companies and also provide details of branches and subsidiaries. This is important for those organisations who have EU group entities and have thus far relied on free movement for the transfer of European colleagues into the UK."
There are other practical elements to consider, she adds, including ensuring there are enough certificates of sponsorship to assign to future workers and making sure candidates will be able to meet the English language requirements. "If budgets are being set now, bear in mind that EU hires will attract the immigration health surcharge and also the immigration skills charge," she adds.
The reality is that many HR teams are underprepared and under-resourced for the new regulations, believes Huw Cooke, senior associate in the employment law practice at Burges Salmon. "To ensure they are prepared for this, employers may wish to consider training members of their HR or recruitment teams on the requirements of sponsorship, as well as building more time into the recruitment process to allow for the various additional steps," he warns.
Organisations also need to attract suitable candidates from overseas, something that has inevitably been made more difficult by the current coronavirus pandemic. The starting point, says Dubal, should be to research the market and candidate pool. "Find out where the employees you are attracting get their information from," he says. "Are there trade associations, unions or trade media that advertise in locations you are recruiting from? Can you use your social media channels to reach out to potential employees? Are there regional job or trade fairs?"
Traditional advertising will likely have a role to play, whether in print or online. Organisations must ensure they are complying with the relevant legislation, which itself is subject to change. "Up until 31 December 2020, advertising a vacancy to ensure suitably qualified or experienced settled workers have been given the chance to apply is a mandatory requirement for non-shortage skills under tier 2 (general) of the points-based system," points out Beech. "From 1 January 2021, advertising a vacancy is not required as part of the process for hiring a skilled worker under the new points-based system."
Organisations need to ensure they do not discriminate in any recruitment advertisement. Any job adverts in UK publications must comply with the terms of the Equality Act 2010, while those placed in international publications must observe local legislation for that country. "Advertisements aimed at a global audience should accurately describe the role and skills required to assist potential applicants in identifying whether they should apply," says Debbie Coyne, senior associate employment law solicitor at Aaron & Partners.
"While it may be appropriate to require that applicants have attained a specific qualification or level of education, consider whether this is necessary. Differences in educational systems globally could prevent candidates from applying, or the advertisement could be deemed discriminatory if the criteria cannot be justified. Employers should consider stating that equivalent qualifications are also acceptable."
Not everyone is optimistic about the ability of employers to navigate successfully what remains a changing landscape. "Organisations aren't particularly well prepared for international recruitment in a post-Brexit environment as there is still a wealth of uncertainty around the end of the transition period," points out Tania Bowers, legal counsel at the Association of Professional Staffing Companies.
"What is certain though, is that businesses will face a real struggle accessing highly skilled independent professionals to work in the UK from Europe due to the limitations of the points-based immigration system; a situation that is further exacerbated by the increased migration from the UK since the Brexit vote. Employers in the UK are on track for a real resourcing challenge in the very near future."
In some sectors, employers may find themselves having to compete for overseas talent, and it is not necessarily just the employment package that individuals will consider. "Any organisation that can demonstrate an understanding and appreciation of migrant labour will have an advantage," points out Dubal. "Migrants will be attracted to organisations with diverse cultures that offer competitive salaries and packages, and that can demonstrate they are able to support migrant workers."
Overseas candidates are already becoming much more savvy when choosing a potential employer, says Beech. "They could well have a grasp on the 'minimum rate of pay' or 'going rate' their job needs in order to qualify for sponsorship from 2021," he says. "More importantly, overseas candidates are filtering out those potential employers who do not hold a sponsor licence. Without a sponsor licence, an employer may not appear to have an inclusive culture."
Ian Nicholas, global managing director of Reed Specialist Recruitment, urges firms to look beyond salary to entice talent. "Benefits, clear career trajectory, training and culture of the organisation are all highly important areas to pay attention to when recruiting international talent," he says. "Many companies can offer a higher salary, but very few can offer a well-defined culture that is beneficial to mental and physical health for a happier life." Working for an ethically minded organisation is also becoming increasingly important to candidates of all ages, he says.
Adrian Adair, chief operating officer at the Morson Group, believes such measures should form part of a strong employer brand. "A good employer value proposition needs to define who you are to cut through the noise while also understanding and addressing the complexities of talent mobilisation," he says. "Get this right and employers will have a powerful recruitment and retention strategy that can overcome the effects of Brexit, a global pandemic and whatever else the future may hold."
Another practical consideration will be how to go about recruiting people when they are based overseas. Here, the rise of remote working during the pandemic has had an impact. "In some respects, organisations are very well prepared, and that's down to Covid-19," says Rebecca Siciliano, managing director of international agency Tiger Recruitment. "The global pandemic has helped employers develop remote end-to-end recruitment processes, from hiring to onboarding. Interviewing candidates via video has simply become the norm for many - they're even comfortable hiring candidates they have never met in person, which they might not have been in the past."
It's worth considering, too, whether the role itself could be performed remotely, says Coyne. "If employers are seeking to target candidates globally then they should consider the practical aspects of recruitment," she says. "Consider whether the role can be conducted remotely, or whether the successful candidate will need to relocate to a specific workplace."