Brexit: Implications & Considerations for UK Employers

The Brexit transition period ends on 31 December 2020 and with a UK-EU trade deal having been agreed just days ago, we look at the implications and considerations of Brexit for UK employers.

Brexit: Implications & Considerations for UK Employers

The United Kingdom officially left the EU on 31 January 2020 and the transition period, during which time the UK was treated for most purposes as if it were still an EU member state and most EU law continued to apply to the UK, ends on 31 December 2020 with a UK-EU trade deal having been agreed just days before the end of the transition period.

How Will UK Employment Law be Affected by Brexit?

It is the case that significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers. 

In fact, some EU employment laws merely incorporated protections that were already provided by UK law. For example, UK equal pay, race and disability discrimination laws preceded EU anti-discrimination obligations. Similarly, there was a UK right of return from maternity leave before EU maternity leave rights were implemented. 

EU employment law has been incorporated into UK law in a variety of ways.  Some laws are secondary legislation introduced by a government minister under powers granted by the ECA 1972.  Other laws are primary legislation (for example the Equality Act 2010 (EqA 2010)) and will remain in force until repealed. 

Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period but on a different constitutional basis, for an indefinite period, unless and until altered by the appropriate UK legislative body.

Employers’ Obligation to Prevent Illegal Working in a Post-Brexit UK

It has always been unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK, or someone who is working in breach of their conditions of stay.  Failure to identify those migrants who require immigration permission to live and work in the UK and to undertake the prescribed and ongoing “right to work” checks can result in severe criminal and civil penalties.

The maximum fine is £20,000 for each illegal worker (this increased from £10,000 on 16 May 2014). On 12 July 2016, the maximum prison sentence increased from two to five years and the scope of the offence extended from “knowingly” employing an illegal migrant to “has reasonable cause to believe” the person is employed illegally.

Right to Work Checks

Employers are required to conduct specified right to work checks on all prospective employees, including British citizens and EU nationals. The checks provide a statutory excuse for the employer if the employment is subsequently found to be unlawful. Employers must conduct the checks in a way that is not discriminatory.  To comply with their obligation to prevent illegal working, an Employer must:

  • Carry out “right to work” checks on all prospective employees before the employment starts.
  • Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK or require a document to evidence their right as in the case of non-EEA family members of EEA or Swiss nationals, or an application pending.
  • Keep records of all the checks carried out.
  • Not employ anyone it knows or has reasonable cause to believe is an illegal worker.
  • Where the employer is also a sponsor under the points-based system, it must also comply with the sponsor management system requirements.

The most common examples of people who do not require permission to work in the UK (though may still require a visa) are:

1) British citizens. However, British Dependent Territories citizens, British nationals (overseas) and British overseas citizens do require permission to work in the UK. Employers must be careful as these passports look like British passports but may not contain the right to live and work in the UK. 

2) Those who have the right of abode in the UK (which gives the right to live and work in the UK permanently, without any immigration restrictions).

3) Those who have indefinite leave to remain in the UK (also known as “settlement” or “permanent residence”).

4) EU, European Economic Area (EEA) and Swiss nationals residing in the UK before 1 January 2021. They can apply for immigration status under the EU Settlement Scheme allowing them to remain in the UK.  Applications under the EU Settlement Scheme must be submitted by 30 June 2020.   Successful applicants will receive a letter by email confirming their settled or pre-settled status. This will not, of itself, prove an individual’s status and those granted settled or pre-settled status will be able to prove their status online (View and prove your immigration status).

5) Non-EEA family members of EEA and Swiss nationals and those with a retained or derivative right of residence who can produce a UK residence document to prove their status in the UK. Applications for settled or pre-settled status, save for in a few cases, need to be submitted by 30 June 2021.

6) Persons granted refugee status or humanitarian protection.

7) Some asylum claimants. Normally asylum claimants are not permitted to work, but some may be issued with an Application Registration Card that confirms certain employment is permitted. 

8) Some overseas students can work part-time during term time and full-time during holidays.

In addition, dependants who are successful in their application to accompany or join a migrant who has been granted permission to come to the UK for longer than six months will usually be given a general permission to work.

Unless listed above, an individual is likely to need specific immigration permission to work in the UK under the Skilled Worker route or one of the other work-related categories.

EU citizens residing in the UK before 1 January 2021 can apply for immigration status allowing them to remain in the UK under the EU Settlement Scheme. Applications must be submitted by 30 June 2021. EU citizens who have lived in the UK for a continuous period of five years or more at the date of their application will qualify for settled status, while those with fewer than five years will qualify to apply for pre-settled status (which should lead eventually to settled status).

Changes to Right to Work Checks for EU Citizens 

It is important to note that from 30 June 2021, the ‘right to work checks’ Employers must undertake will change.  Set out below are the current and future requirements.

Until 30 June 2021

Employers of EU citizens will be able to rely on the EEA passport or ID card to confirm the person’s right to work in the UK until 30 June 2021.

From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

Holders of settled and pre-settled status

Holders of settled and pre-settled status will not get a paper document to prove their right to work in the UK (except that non-EU nationals will continue to hold BRCs to facilitate their travel to the UK). Instead, their immigration status will be recorded electronically and will be accessible as soon as a decision has been made on their application. The online profile can then be used to prove their right to work in the UK to employers.

The migrant’s online profile can be accessed by entering the number of the identity document used in their application for settled or pre-settled status and their date of birth. A single-use code will then be sent to the migrant’s mobile phone number or email address that they provided in their application which they will need to enter online to access their profile. Migrant’s will not need a username or password to view their profile.

Migrants will be able to go their online profile to:

  • View their status.
  • Update their details if their contact details or identity document changes.

Support for Employers

HMRC guidance on helping businesses and individuals get ready for Brexit can be found here.
If you are an Employer and require advice and support on any employment matters arising post-Brexit and/or how to prepare, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

Employment Law Review – What Changed in 2020 & What to Expect in 2021

As this remarkable year draws to an end, we look back at the various changes to UK employment law during 2020 and look forward to the changes to UK employment law we can expect in 2021.

Employment Law Review – What Changed in 2020 & What to Expect in 2021

Reflecting on the Events of 2020

On 23 March 2020, Prime Minister Boris Johnston announced unprecedented restrictions and a national lockdown across the United Kingdom to combat the rapid spread of COVID-19 (Coronavirus) and so began the most challenging nine months UK Employers have had to face since the outbreak of WW2.

it is impossible to understate just how difficult the last nine months have been due to the scourge that is the COVID-19 virus, but with COVID vaccines now underway throughout the UK, hopefully we have at last reached the beginning of the end of what has undoubtedly been a challenging year for us all.   

Employment Law Changes in 2020

Long before COVID-19 appeared on the horizon, the mechanisms to introduce various changes to UK employment legislation were already underway and amidst the chaos of the COVID crisis, several significant changes to UK employment legislation were introduced.

Starting on 23 January 2021, when the European Union (Withdrawal Agreement) Act 2020 received Royal Assent, several more changes to UK employment laws followed, including:

  • Various emergency measures were implemented as a result of the 2019 coronavirus (COVID-19) pandemic, including new rules on statutory sick pay, a relaxation of holiday carry-over rules, and a government-funded furlough scheme to prevent job losses. 
  • The National Minimum Wage (Amendment) Regulations 2020 increased the national living wage and national minimum wage rates.
  • The Social Security Benefits Up-rating Order 2020 increased statutory sick pay, maternity pay, paternity pay, adoption pay and shared parental pay rates.
  • The Employment Rights (Increase of Limits) Order 2020 (SI 2020/205) (Employment Rights Order) revised compensation limits for certain tribunal awards and other statutory payments.
  • The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) came into force.
  • The “Swedish derogation” in the Agency Workers Regulations 2010 (which allowed employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met) was removed by the Agency Workers (Amendment) Regulations 2019 (SI 2019/724) 
  • Temporary work agencies must provide agency work-seekers with a Key Information document, including information on the type of contract, the minimum expected rate of pay, how they will be paid and by whom under the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 (SI 2019/725
  • All workers were given the right to a written statement of terms under the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) 
  • The threshold to request an information and consultation agreement under the ICE Regulations was lowered by the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) (
  • All termination payments above the £30,000 threshold are now subject to class 1A NICs
  • The Parental Bereavement (Leave and Pay) Act 2018 took effect. 
  • The government issued guidance on the treatment of salaried-hours work for NMW purposes, noting that the effect of the amends to the National Minimum Wage Regulations 2015 (SI 2015/621) is to widen the range of pay arrangements that are compatible with workers being treated as performing salaried-hours work under the NMW rules.
  • Temporary work agencies must provide agency workers whose existing contracts contain a Swedish derogation provision with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply.   

Employment Law Changes in 2021

Looking to the year ahead, it seems very likely that the COVID-19 restrictions will continue to impact us for several more months to come, but notwithstanding the impact this will continue to have, there are also a number of legislative and employment case law developments that Employers should be aware of, mainly:

1 January 2021:  New UK points-based immigration system takes effect. On the 19 February 2020 the Prime Minister and Home Secretary announced that a new global points-based immigration system, applicable to all non-British and Irish nationals will apply from 1 January 2021. This will follow the end of free movement rights for EEA nationals on 31 December 2020.

4 January 2021:  Court of Appeal: Community Based Care Health Ltd v Narayan. On 4 January 2021, the Court of Appeal will consider whether a GP providing services to an NHS provider through a limited company had been correctly characterised as a worker under the Employment Rights Act 1996.

15 January 2021:  Consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences closes. On 15 October 2020, the Sentencing Council launched a consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences including slavery, servitude, compulsory labour and trafficking people for exploitation purposes. 

21 January 2021:  EAT: Webster and another v United States. On 21 January 2021, the EAT is set to consider whether an employment tribunal had jurisdiction to hear claims for discrimination and unfair dismissal brought by two local British civilian personnel who were employed by the US Air Force on UK RAF bases and were covered by the common law doctrine of state immunity.

1 February 2021:  HMRC to start publishing details of employers’ CJRS claims. HMRC will start publishing details of employers’ CJRS claims on GOV.UK from February 2021. The published information, relating to claim periods starting on or after 1 December 2020, will include the employer name, an indication of the value of the claim within a banded range and the company number (for companies and LLPs). 

26 February 2021:  The government’s consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit will close on 26 February 2021.

26 February 2021:  The government’s consultation on measures to reform post-termination non-compete clauses in employment contracts will close on 26 February 2021.

1 April 2021:  Proposed date for revision of the socio-economic duty under the EqA 2010 and final statutory guidance in Wales. On 22 November 2019, the Welsh Government published a consultation on commencing the socio-economic duty under section 1 of the Equality Act 2010 (EqA 2010). The consultation closed on 17 January 2020. The duty will enter into force on 1 April 2020, with interim guidance published at the same time. 

6 April 2021:  Extension of off-payroll working rules to private sector: commencement. As announced in the 2018 Budget, the extension of the rules to the private sector with effect from 6 April 2021 is intended to counter non-compliance with IR35. The measure shifts the compliance burden from the worker’s personal service company to the medium and large “client” organisations that they work for.

30 April 2021:  COVID-19: Coronavirus Job Retention Scheme ends. On 17 December 2020, the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 30 April 2021.

Summer 2021:  Report of government independent review of the Human Rights Act 1998 expected to be published. On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 and whether it requires reform. This runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts.

9 November 2021:  Supreme Court: Harpur Trust v Brazel. On 9 November 2021, the Supreme Court is due to hear an appeal against the Court of Appeal’s decision that an employment tribunal was wrong to find that “part-year workers” (those working only part of the year) should have their annual leave entitlement capped at 12.07% of annualised hours.

2 & 3 June 2022:  Bank holiday: Queen’s Platinum Jubilee. On 12 November 2020, the government announced the creation of a Platinum Jubilee bank holiday on 2 and 3 June 2022, creating a four-day bank holiday weekend.

Specialists you need.  Experience you can trust.

Although our offices are currently closed for the festive period they will reopen again at 9.00am on Wednesday 6 January 2021.  If you require advice on any of the issues noted above or any other employment matter, you can still book a free consultation with one of team of specialist from 6 January 2021 here – Book a Free Consultation

In the meantime, best wishes for a Happy New Year full of health, hope and happiness!

#StaySafe #HappyNewYear #ELS

A New Year, a New Name

We are delighted to announce that we have changed our name from EmployEasily Legal Services LTD to Employment Law Services (ELS) LTD effective 23 December 2020.

A New Year, a New Name

Our multi-award-winning business has undergone a significant transformation since it was founded in December 2008 and we believe our name change more accurately reflects our position as specialists in employment law services and will enable us to represent what we do more accurately to the wider client base we now serve.

The migration of our email domain to our new company name and the rebranding of our various social media channels has already been completed and we anticipate that our website will be successfully migrated to our new domain (EmploymentLawServices.com) over the next few days, ensuring our transformation is fully completed before our offices reopen in the New Year.

Our commitment to our clients remains our highest priority and our dedicated team of employment law specialists will continue to deliver the high standards of professionalism our clients are accustomed to receiving.

As this remarkable and unprecedented year draws to a close, the team at Employment Law Services (ELS) LTD, wishes you and your families a healthy, happy and prosperous Christmas and New Year!

#StaySafe #MerryChristmas #HappyNewYear #ELS

Furlough Scheme Extended to End of April 2021

On 17 December 2020, the Chancellor Rishi Sunak announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 30 April 2021.

Furlough Scheme Extended to End of April 2021

In what many may view as an indication that lockdown restrictions across the UK are likely to remain in place in one form or another until at the least spring 2021, Chancellor Rishi Sunak announced today that the Coronavirus Job Retention Scheme (CJRS) will be extended until 30 April 202.

In doing so, he also confirmed that the percentage the government pay will remain unchanged until the end of April 2021 meaning Employers will be able to claim 80% of employees’ wages, capped at £2,500 for hours not worked, but Employers will still pay the national insurance and employer pension contributions on employees’ furlough pay.

Support for Employers

The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers. 

If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.

Employment Law Services Celebrates it’s 12th Anniversary

December 16, 2008 was a Tuesday, and it was the 351st day of the year in 2008. It was the 51st Tuesday of that year and it was also the day that Employment Law Services (ELS) was born.

Employment Law Services (ELS) Celebrates it’s 12th Anniversary

As of today, the multi-award winning team at Employment Law Services (ELS) has been providing a complete employment law solution for employers and employees for 12 years!

We’d like to thank all those who have helped contribute to our success over the past 12 years and look forward to continuing to provide our full range of employment law and HR services to clients throughout the UK for the next 12 years and beyond!

Although our offices will close at 3.30pm on Wednesday 23 December 2020 and reopen again at 9.00am on Wednesday 6 January 2021, you can still book a free consultation with one of team of specialist up to 23 December 2020 or from 6 January 2021 here – Book a Free Consultation

#StaySafe #MerryChristmas #HappyNewYear #EELS

Brexit: Implications For UK Employment Law

The transition period, which commenced on 31 January 2020 (exit day), will end on 31 December 2020 irrespective of whether a Brexit deal has been reached, but what are the implications for UK employment law?

Brexit: Implications For UK Employment Law

Background to Brexit

On 31 January 2020 Great Britain left the EU after both the UK and EU governments reached agreement on the terms of the withdrawal agreement.  The withdrawal agreement became law when the European Union (Withdrawal) Act 2018 (EUWA) received Royal Assent in June 2018 and this legislation effectively ended the supremacy of EU law in the UK and prepares the UK’s legislative framework for withdrawal from the EU.

On 17 October 2019, the EU27 leaders approved a revised political declaration on the framework for the future UK-EU relationship with amendments to the Protocol on Ireland/Northern Ireland. The political declaration is made in parallel with the withdrawal agreement, which came into force on exit day.

On 23 January 2020, the European Union (Withdrawal Agreement) Act 2020 (WAA), an Act to implement the EU-UK withdrawal agreement into UK law, received Royal Assent.  The WAA made several amendments to the 2018 EUWA.

In case no deal was reached before exit day, the government enacted a series of statutory instruments to prepare for the UK’s exit from the EU to ensure a functioning statute book on exit day.

If no relevant agreement as to the future UK-EU relationship with respect to these aspects of employment law is agreed by the end of the transition period, these provisions will apply after the transition period.

The transition period, which commenced on 31 January 2020 (exit day) will end on 31 December 2020, irrespective of whether a Brexit deal has been reached.

Potential Employment Law Implications Post-Brexit

EU-related employment law is found in both primary and secondary legislation, as well as ECJ case law, and accordingly, different mechanisms will be required to preserve or amend the law emanating from these varying sources.

Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period but on a different constitutional basis, for an indefinite period, unless and until altered by the appropriate UK legislative body.  However, from 1 January 2021 existing EU derived rights could be changed by domestic legislation, (although in practice this seems unlikely in at least the short term).

The Queen’s Speech last year set out proposals for a new Employment Bill, which will include the following measures to protect workers’ rights:

  • Creation of a new, single enforcement body, offering greater protections for workers and to support business compliance, ensuring vulnerable workers are aware of and can exercise their rights.
  • Ensuring that tips left for workers go to workers in full.
  • Introducing a new right for all workers to request a more predictable contract after 26 weeks service.
  • Extending redundancy protections to prevent pregnancy and maternity discrimination.
  • Allowing parents to take extended leave for neonatal care; and
  • Introducing an entitlement to one week’s leave for unpaid carers.

Impact of Brexit on Preventing Illegal working

Employers should be aware that EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens.

Employers will continue to be able to confirm an EEA national’s right to work using only their passport or national ID card until 30 June 2021. From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

Employers reliant on EEA or other foreign workers, they should familiarise themselves with the new immigration system, identify any staff who will be impacted by it and, if necessary, obtain a sponsor licence.  

There are no immediate actions that Employers need to take in relation to the post-transition period, but they shouldn’t ignore Brexit and should continue to monitor develops closely and take the appropriate legal and professional advice, as required.

Support for Employers

HMRC guidance on helping businesses and individuals get ready for Brexit can be found here.

If you are an Employer and require advice and support on any employment matters arising post-Brexit and/or how to prepare, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

Office Closure During the Festive Period

With Christmas just over two weeks away, we confirm when our office will close during the festive period.

Office Closure During the Festive Period

Our offices will close at 3.30pm on Wednesday 23 December 2020 and will reopen again at 9.00am on Wednesday 6 January 2021.

With the exception of Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day and 2nd January, any clients requiring advice and support with any urgent employment matter can contact us via our Emergency Out of Hours Helpline where one of our team members will be on hand to assist.

It is impossible to understate just how difficult the last ten months have been due to the scourge that is the COVID-19 virus, but with COVID vaccines now underway throughout the UK, hopefully we have at last reached the beginning of the end of what has undoubtedly been a challenging year for us all.   

#StaySafe #MerryChristmas #HappyNewYear #EELS

Office Closure During the Festive Period

Don’t Let This Christmas End in Tiers

I’m just going to say it, 2020 has been a nightmare and after the hellish year we’ve all had you would be forgiven for not giving much thought to ‘celebrating’ Christmas as we head into December, let alone throwing a Christmas party for your staff!

Don’t Let This Christmas End in Tiers

Do They Know Its Christmas?

Apart from the obvious physical challenges to holding a Christmas party, caused by the strict lockdown restrictions still in place across many parts of the UK, many Employers will undoubtedly feel weary from fighting to keep their business going over the last 10 months and so may not feel much like celebrating Christmas this year, let alone organising a staff Christmas Party, and who would blame them!  

But before you decide to write off Christmas and/or the annual staff Christmas Party this year, try to remember that Christmas is as much a feeling as it is a holiday.  

Christmas represents the birth of a new beginning and hope. We celebrate it by giving the light of love to those that need it most and we remember the importance of being good to one another, brightening each other’s lives and spreading joy, happiness and peace. 

Benefits of a Virtual Christmas Party

Some of the benefits of organising a virtual Christmas Party for your staff include:

  • Bringing your team together, no matter where they are
  • Maintaining good workplace well-being
  • Boosting employee engagement
  • Combating loneliness at work and/or at home
  • Improving team morale

Sure, planning any sort of a Christmas Party this year will be a challenge, but with a little bit of effort and creativity there’s no reason why it can’t be done and in making the effort you will be helping yourself and your team to let go of all of the stress of the last 10 months and to step into a brighter and happier place.  

There are a plethora of ideas for celebrating Christmas with your team virtually, whether its escape rooms, cocktail masterclasses, a games night or a pub quiz, Employers can easily and cost-effectively bring their teams together this Christmas to celebrate, have fun and create memories that everyone will look back on in years to come.

Avoid an HR Hangover

If you take the leap and do decide to hold a Christmas Party, even a virtual one, it will still be a ‘work’ event, so here are Employment Law Services (ELS)’ “’Top Tips” to help Employers avoid an HR hangover:

  • Ensure all employees are aware of the company’s standard disciplinary and grievance procedures.
  • If staff are expected to work the day after the Christmas party, make sure this has been clearly communicated to them beforehand.
  • At the party, ensure all employees are catered for regardless of their age, sex, sexual orientation, religion or disability.

Don’t Let This Christmas End in Tiers

Yes, the COVID-19 pandemic has been a nightmare and 2020 has been a hellish year for us all, but for the sake of your own mental health and that of your team, don’t let COVID be the grinch that stole Christmas! 

Don’t Let This Christmas End in Tiers

#StaySafe #MerryChristmas #HappyNewYear