This note outlines the expected implications for UK employment law of the UK’s withdrawal from the EU.

The government has published draft legislation intended to implement its commitment to protect workers’ rights after Brexit. On 6 March 2019 the government published ‘Protecting and Enhancing Worker Rights after the UK withdrawal from the EU’. In the accompanying press release the government stated that it has committed ‘not to reduce the standards of workers’ rights from EU laws retained in UK law’ and that it will ‘ensure that new legislation changing those laws will be assessed as to whether they uphold this commitment’. The draft legislation provides, among other things, that whenever the government introduces a new Bill that may affect employment rights, a Minister will be required to consult workers’ and employers’ representatives and then make a statement to Parliament before Second Reading. The statement must either be to the effect that, in the Minister’s view, the Bill will not result in the regression from any pre-exit EU workers’ right, or that, although the Minister is unable to make such a statement, the government nevertheless wishes the House to proceed with the Bill. The draft legislation also includes provisions requiring the government to report on new, post-Brexit EU workers’ rights, such as those introduced by future EU Directives, and to state whether domestic law includes the same kind of right and, if not, whether the government intends to take any action. The government will be obliged to consult with workers’ and employers’ representatives before making such reports. As part of the policy paper there are also proposals to introduce a single enforcement body to protect vulnerable and agency workers.

EU-derived employment law

A significant proportion of the UK’s employment laws have their basis in UK legislation. EU employment law provides a minimum standard below which domestic employment law must not fall. Examples include:- rights relating to discrimination, maternity rights, equal pay, temporary agency workers’ rights, limitations on working time and protections on the transfer of undertakings.

Subject to the provisions of the EU withdrawal agreement or subsequent trade agreement, withdrawal from the EU would mean that UK employment rights currently guaranteed by EU law would no longer be so guaranteed. However, the existing government has made a commitment to ensure that workers’ existing rights are retained.

Draft withdrawal agreement

The draft withdrawal agreement endorsed by leaders at a special meeting of the European Council on 25 November 2018 provides that workers will continue to enjoy the following:-

• The right not to be discriminated against on the grounds of nationality as regards employment, remuneration and other conditions of work and employment
• The right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host State or State of work
• The right to equal treatment in respect of condition of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or reemployment
• Collective rights
• The right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the national of the host State or State of work, if such children are residing in the territory where the worker works.

Agreement has been reached that the transition will be 30 March 2019 and 31 December 2020. This is the government’s formal indication of its plans both legally and operationally in relation to settled status, however the final position may be subject to change:-

• EU citizens and their family members will be able to apply for settled status (indefinite leave to remain) or pre-settled status (limited leave to remain) under the scheme if there are resident in the UK on or before 31 December 2020, and
• In the case of settled status applicants, they have lived in the UK continuously for 5 years or more
• In the case of pre-settled status applicants, they do not meet the residence requirements for settled status
• In the case of those who have been issued with a permanent residence document, they have not been absent from the UK for a continuous period of more than 5 years

Legal mechanism for ending the free movement regime

The government has stated that it would be bringing forward an Immigration Bill in the next Parliament to ‘repeal the EU-derived free movement provisions so as to be able, on our exit from the EU, to bring EU citizens fully within the scope of UK law’. This might aim to put in place the foundations for a new immigration regime for EU citizens (who currently do not require leave to enter the UK). It is currently unclear as to what is the government’s precise intention as regard how and when the existing EU free movement regime will be terminated, and as to the transition. It is likely that many key issues will be the subject of negotiation with the EU (such as, in particular, whether or not there should be a preferential immigration regime for EU citizens as against nationals of other countries). Both the government and the EU have indicated a wish to negotiate at least some reciprocal arrangements for the movement of persons.

Priorities for employers

A suggested priority would be an examination of the organisation’s current staffing in the UK to see what potential immigration issues might arise post-Brexit. Businesses should also consider how many EU (non-UK) citizens they employ and whether the business is heavily dependent upon EU employees, either skilled or unskilled. Employers should work with their HR teams to understand the needs and concerns of their workforce and the impact any loss of ability to retain or employ non-UK employees might have on the business.

Brexit continues to be an ongoing transitional process and should be monitored and actively reviewed by employers.

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