Can you still employ EU seasonal workers after Brexit?

What does the future hold for agricultural businesses and the Seasonal Workers Pilot Scheme from 1^st January 2021, after Brexit?

Lodders’ agricultural employment law specialist explains.

Employers in the UK agricultural and horticultural sectors have been heavily dependent on EU migrant labour for many years, particularly seasonal workers. This has been an important and necessary working relationship due to the UK’s own seasonal labour shortages.

Will there be immigration exceptions for agricultural labour?

From 1^st January 2021, the UK’s immigration system will be transformed when freedom of movement ends, and EU citizens will be subject to the same immigration rules as citizens from the rest of the world.

As a result of restricted migration, if no exceptions are made for agricultural labour, it seems likely that the industry will go through structural changes.

Seasonal Workers Pilot Scheme

To try to mitigate the impact on agriculture and horticultural sectors, the government’s Seasonal Workers Pilot Scheme (the Pilot) was introduced last year.

Defra is the endorsing government department and has been responsible for setting some of the key parameters of the Pilot.

The Pilot was designed to specifically help the edible horticulture sector as that is where significant seasonal labour shortages were reported. The Pilot has enabled farmers in the edible horticulture sector to have access to a pool of 10,000 workers from outside the EU. That number was increased from 2,500 in 2019.

The Pilot has been managed by the Home Office under the Tier 5 (Temporary Worker) Seasonal Worker category of the immigration system.

Through the Pilot, workers from outside of the EU can be hired for a period of up to six months to help out on farms during peak production periods.

The Pilot will run until the end of December 2020 and will be reviewed to assess whether a future scheme will be run.

No real clarity

There is still no real clarity from the Home Office as yet as to what is happening to the scheme. For many agricultural business owners, this lack of clarity is extremely unhelpful given how close we are to 1^st January 2021. With the current pilot due to come to an end in December, agricultural businesses who engage seasonal or permanent workers’ need to be aware of the potential employment status of individuals working for them. Our previous article provides further information regarding agricultural workers’ employment status.

UK farming unions have maintained that approximately 70,000, not 10,000 seasonal visas will be needed when the EU Freedom of Movement ends on 1 January 2021. This is the number needed to ensure vacancies in the likes of soft fruit, vegetable, and ornamental sectors are filled.

Horticultural businesses will be particularly vulnerable to a reduction in affordable, seasonal labour. The government had proposed that the Seasonal Workers Pilot Scheme will mitigate the impact of this reduction in the supply of labour. However, given that the industry is already suffering shortages in some sectors, it is hard to envisage the scheme will fully compensate for this loss. In addition, the schemes adoption would depend on the political climate and agriculture’s place in overall Brexit negotiations.

Hiring seasonal workers from outside the UK

It is important to be aware that if after 1^st January 2021 you hire seasonal workers from outside of the UK, you need to ensure you do so in line with UK immigration rules and also UK employment law rules. Getting the employment status of agricultural worker’s wrong can be costly for business owners.

Get in touch

Faye is a solicitor in the Lodders Agricultural Sector team. If you need any advice on agricultural employment status, or any other agricultural employment-related matter, please contact our Employment team.