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Post Brexit pilot scheme for seasonal migrant workers

The uncertainties surrounding the UK’s departure from the EU has had a major effect on those reliant on seasonal migrant workers, particularly those involved in agriculture and horticulture who have seen a fall in the numbers coming to work in the UK causing real problems for those with fruit and crops to harvest. Lodders’ Jennifer Linford, Solicitor-Advocate in the Employment team, explains.

The sector and bodies such as the National Farmers’ Union (“the NFU”) have been campaigning for the Government to take action in the light of a 10% shortfall in worker availability this year.  Earlier this year, Stephanie Maurel, Chief Executive of Concordia was quoted as saying:

 “Normally we have 10 people being interviewed by our agency for every job. As of a month ago, we are putting three or four job offers in front of each seasonal worker from Bulgaria and Romania. They are picking and choosing the ones they will come to. There has been a total switch around in 12 months. We’ve never had this before.”

The situation, which has in part been put down to the Government’s 2013 decision to end the Seasonal Agricultural Workers Scheme but is also attributed to the UK’s decision to leave the EU and changes in exchange rates , has left many farmers and growers with crops left unpicked.

The NFU had emphasised its fears that, in the absence of a clear strategy on how the industry planned to tackle this problem, farmers’ efforts in securing an effective and profitable harvest would be hindered. The agriculture and horticulture industries had been left unclear about how the Government proposed to support their businesses in satisfying not only current but also the predicted demands post Brexit (due to the end of free movement of workers).

Sigh of relief for the agricultural industry

Farmers and growers across the Country are no doubt breathing a slight sigh of relief upon hearing the Government’s announcement of a “revolutionary” two year pilot scheme running from July 2019 until- December 2020. The scheme will be monitored closely by the Home Office and Defra.

NFU President, Minette Batters has been quoted as saying:

 “Farmers and growers have seen worker availability tighten significantly in recent years, with the shortfall to July this year reaching ten per cent. Growers will take great confidence in knowing that the government is listening during what have been extremely testing and uncertain times for the sector”

Ministers hope the scheme, which will authorise visas for up to 2,500 non-EU nationals (aged 18 and upwards), will “plug” the labour gaps which are so painfully prevalent in the industry.

In practice the recruitment of 2,500 non-EU workers falls far short of completely “plugging” the labour gap but it does reflect that the sector’s concerns are being heard and to some extent recognised.

It is though worth remembering that farmers and growers able to recruit such workers do have numerous responsibilities to them.

What does the term ‘Worker’ mean and what basic employment rights are they entitled to?

A worker is someone employed on a casual basis and is entitled to the following:

–          National Minimum Wage;

–          Paid annual leave;

–          Rest breaks; and

–          Protection from discrimination.

The distinction between a worker and an employee has been become blurred and high profile cases such as ‘Pimlico Plumbers’   and ‘Deliveroo’ are stark reminders that employers need to ensure that they frequently review the employment status of those they engage.  However, it is “highly unlikely” that disputes over employment status will arise under this trial scheme because the engagement is likely to last no longer than 6 months and there can be little ambiguity as to the nature of the relationship.

However, prudent farmers and growers should frequently evaluate the employment status of those they engage to carry out work for them. Key features present in Employer and Employee relationships are:

–          The employee receives paid holiday leave;

–          They are required to do a minimum number of hours and expect to be paid for time worked;

–          They cannot send someone else to do their work in their place; and

–          The business deducts tax and National Insurance from their wages.

An employee is entitled to the following:

–          Statutory Sick Pay;

–          Statutory maternity, paternity, adoption and shared parental leave; and

–          Minimum notice periods if their employment will be terminated.

Regardless of whether they come from within or outside the UK, since a worker wouldn’t enjoy these additional rights, understanding the status of a person engaged to work for the business is of crucial importance.

What else should employers consider when they employ or engage someone from overseas?

Before proceeding with any arrangement with overseas residents it is important to ensure that the individual has the appropriate level of insurance in place, particularly as non-EU residents (and EU residents post Brexit) will not be entitled to free health care on the NHS, so if an accident happens how will treatment be paid for?

At present under the scheme who is responsible for checking/arranging insurance (if any such requirement even exists) remains unknown.

Likewise the details released are unclear about   any requirements to check that the worker is aged 18 or over, and that they have the appropriate work permit. These requirements would usually be the responsibility of the Employer and failing to do so could amount to a criminal offence under the Immigration, Asylum and Nationality Act 2006. However, as this scheme is part of a Government pilot it is not yet clear whether these responsibilities will pass to the Scheme provider, or not.

It would also be prudent for those engaging the services of non-UK residents to maintain accurate records of:

–          Contact details for the employee, including their next of kin;

–          Risk assessment documentation; and

–          An agreement as to how the individual can be contacted and how frequently.

The extent to which the scheme offers a practical and meaningful solution to the sector’s needs remains to be seen but the trial must be seen in a positive light even if the detail of how it will work has still to be made clear.

Lodders’ employment solicitors are members of the firm’s Rural Sector team that provides legal support to those living and working in the rural community and offer accurate, focused and solution-based legal advice to a wide range of clients. In addition to advising and supporting our agriculture sector clients on employment related matters the team has forged an excellent reputation for advising SME’s, publicly owned companies, charities and other bodies in respect of all manner of employment related issues.

For more information or advice please contact Nick Rowe, email: or Jennifer email:, tel: 01242 229093.

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For more information or advice please contact Nick Rowe, email: or Jennifer email:, tel: 01242 229093.