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?
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.