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Brexit Implication On UK Employment Laws

With the end of the Brexit transition period imminent, businesses across the UK, small, medium, and large, are desperately trying to make sense of what will change, and how they can protect their interests. With the end of free movement from 1st January, 2021 businesses used to hiring skilled EU workers will need to understand the points-based immigration system. Businesses will also need to understand the impact of Brexit on employment law. In this article, we will take a look at some of the areas of employment law which may be affected by Brexit.

Will Brexit impact on UK employment law?

Since our entry into the European Union, a great deal of EU employment law has been transposed into UK law in the form of primary and secondary legislation, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.

It is expected that most UK employment legislation which originated from the EU will remain in place immediately after the transition period comes to an end. In March 2019 the Government published a policy paper entitled, ‘Protecting and enhancing worker rights after the UK withdrawal from the European Union’ which affirmed a commitment to keep the rights of UK workers aligned with EU employment protection. That said, some aspects of law impacting on employers have already altered, including changes to the Immigration Act resulting from the ending of free movement, which will impact how businesses recruit from the EU/EEA.

Equality and Human Rights Law

Understandably, there is some concern that the UK’s departure from the EU may coincide with an attempt to water down or remove aspects of equality and human rights law in the UK. Under the EU Withdrawal Agreement (WA), the Charter of Fundamental Rights of the European Union, which provides for the fundamental rights and freedoms of individuals (dignity, freedoms, equality, solidarity, citizens' rights and justice) is no longer part of UK law. Section 5(4) of the WA specifically states, “The Charter of Fundamental Rights is not part of domestic law on or after exit day”. The Conservative 2019 manifesto also stated their intention to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.

Leaving the EU does not affect the UK’s membership of the ECHR, and if there is to be any ongoing trading relationship between the two, it is likely this will need to be maintained. On this basis, employers can expect little in the way of concrete changes to equality and human rights law, at least for now.

Holidays and Working Time

Without the oversight of the EU, there is a potential that holiday and working time laws may be targeted for change in the coming year or two. It would not be entirely surprising to see tweaks to rights such as the right to paid holiday and the right to accruing holiday while on sick leave; potentially basing paid holiday on basic pay and limiting rights to accrue and carry over holidays. There may also be attempts to remove the cap on weekly working hours.

Agency Workers Regulations

The Agency Workers Regulations 2010 (AWR 2010) which are based on the EU Temporary Workers Directive, may be a target for revocation once the UK fully leaves the EU, in large part because they are seen as cumbersome and disliked by businesses. However, there is no stated intention by the Government to water down or remove agency worker rights following Brexit at present.

Data protection

UK businesses which send and/or receive data (e.g. payroll data) to or from the EU, will need to ensure they remain compliant with data protection laws. As the ICO states, “The GDPR will be brought into UK law as the ‘UK GDPR’, but there may be further developments about how we deal with particular issues such as UK-EU transfers. The GDPR will be retained in domestic law at the end of the transition period, but the UK will have the independence to keep the framework under review”. As the ICO also point out, it is the Government’s intention to “incorporate the GDPR into UK data protection law from the end of the transition period” meaning that there will be little in the way of changes for businesses in terms of the core data protection principles and rights and obligations.

Freedom of Movement

EU/EEA workers currently in the UK will need to apply for settled or pre-settled status under the EU Settlement Scheme if they plan to stay in the UK. They will have until 30th June 2021 to apply. Children and partners will also be able to apply under the scheme. Businesses planning to continue to recruit from within the EU after the end of 2020 will need to apply for and secure a sponsor license, which will allow them to issue Certificates of Sponsorship to skilled EU workers.

Final words

As we have established, we do not expect employers to be inundated by changes and risks as a result of employment law changes due to Brexit. If you operate in the UK and the EU, then the challenge will be in ensuring that you keep up to date with UK and EU employment law if and when it diverges. As ever, your business is not alone; many enterprises across the UK will have the same challenges, and as such, help will always be at hand from employment and immigration solicitors if you need it.

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