Introduction – Brexit & employment law

The UK left the European Union (EU) on 31 January 2020. An agreement between the UK and the EU about their future relationship was reached after a period of 11 months. As of 2021, the UK is no longer bound to follow EU law in relation to employment laws.

Now that the UK has entered into a new agreement under the EU-UK Trading and Cooperation Agreement, new rules apply on tariffs, exports, data and employing people from within the EU.

What impact will Brexit have on EU nationals?

You may continue to live and work in the UK if you were living in the UK before 1 January 2021. The UK and EU have agreed that EU workers who are living in the UK should be entitled to apply to the EU Settlement Scheme for settled or pre- settled status. The deadline for this is 30 June 2021.

If you are an EU national and have been living in the UK for a continuous period of 5 years before the deadline, you should be granted settled status. This will give you the right to work and live in the UK indefinitely. If you hold a permanent residence, then you need to apply for this to be transferred into a settled status.

If you are an EU national who has been living in the UK for less than 5 years before the deadline, then you can apply for a pre-settled status. You can then transfer this into a settled status when the continuous 5 years residence has been reached.

Is my job in the UK protected?

Your employment status is likely to be protected if you are from a country within the European Economic Area (EEA) and you worked in the UK before 31 December 2020.

You must apply for ‘settled status’ before 30 June 2021

Proving your rights to an employer

You can share details of your right to work in the UK which includes the type of work you’re allowed to do and how long you can work in the UK for.

In order to prove your rights to an employer you will need:

  • your biometric residence card (permit/card number);
  • your passport; or
  • national identity card.

If you are an EU or EEA citizen, you can continue to use your passport or national identity card to prove you are eligible to work in the UK until 30 June 2021.

Key employment law rights post-Brexit

Most of the following will have no direct impact by Brexit as they do not derive from the EU:

  • National Minimum wage – no impact from Brexit;
  • Unfair dismissal – no impact from Brexit (read more about our guide to unfair dismissal here);
  • Unlawful deduction from wages – no impact from Brexit;
  • Statutory redundancy – no impact from Brexit;
  • Pregnancy and maternity leave – no direct impact from Brexit as UK rights provide 52 weeks’ maternity leave as opposed to EU where the minimum is of 14 weeks
  • Shared parental leave – no impact from Brexit;
  • Paternity leave – no impact from Brexit;
  • Flexible worker right – no impact from Brexit

The following may be affected post Brexit as they are EU based rights:

  • Agency worker – possible changes to simplify some of the rules on agency workers- currently there is a regulation giving agency workers the entitlement to the same basic employment and working conditions as if they had been recruited directly, and/if on completion of a qualifying period of 12 weeks in the same job;
  • Holiday pay – possible changes to calculating holiday pay; although as for holiday, UK provides 5.6 weeks’ holiday which exceeds the EU minimum 4 weeks;
  • TUPE – possible changes such as the ability to harmonise terms and conditions of employment following a TUPE transfer;
  • Redundancy consultation – possible changes to increase the number of employees affected, for example from 20 plus to 100 plus;
  • Discrimination – possible changes to the cap on discrimination compensation. Currently UK has protection against sex, race and disability and further EU extended protections including, age, religion and sexual orientation (read about our guide to discrimination in the workplace)

What next for UK Employment Law?

The Trade and Cooperation Agreement between the UK and EU seeks to prevent either the UK or EU gaining a competitive advantage in a variety of circumstances including rights at work, fair working conditions, workplace health & safety, consultation rights and restructuring undertakings.

We do not expect to see any major or drastic changes to UK employment laws or rights. Only a handful of unpopular laws may be scrapped such as the Agency Workers Regulations, whilst others may be modified.

In light of the above, the UK Government are likely to make some changes to employment legislation, however it is too early to predict exactly what these changes are.

Some changes are possible in the following areas:

  • Holiday pay – UK law may consider whether holiday pay should be calculated on basic salary or whether it should take other payments (e.g. commission) into account
  • TUPE – UK may now have scope to amend TUPE in order to make it more employer-friendly
  • Discrimination – the UK government may consider introducing a cap on discrimination compensation.

What happens to GDPR after Brexit?

Given that the UK has left the European Union (EU), the UK is now a ‘third country’ under the EU’s GDPR. Nevertheless, in December 2020, an interim period of six months of unrestricted data flow between the two was secured (until June 2021). This interim data transfer agreement means that personal data is allowed to be transferred between the UK and EU unrestricted as it was before.

The general data protection rule in UK data law has now been modified into the new UK-GDPR and an updated Data Protection Act.

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