BREXIT AND YOUR EMPLOYMENT LAW RIGHTS- WHAT MIGHT CHANGE?
Please note that this is correct as at 22nd October 2019, however you will appreciate that the Brexit path is fluid by the day.
What impact will Brexit have on EU nationals currently working in the UK?
The UK and EU have agreed that EU workers who are living in the UK should be entitled to apply for ‘settled status’ after living continuously in the UK for 5 years.
You should be granted settled status if you are an EU national and you have been living in the UK for at least 5 years before the deadline (see below). This give you the right to live and work in the UK indefinitely, and could only be lost if you leave the UK for 5 years. If you already hold permanent residence, then you still need to apply to convert this into settled status.
You should be granted “pre-settled” status if you are an EU national and you have been living and working in the UK for less than 5 years before the deadline. You would be able to convert this into settled status when you reach 5 years continuous residence (as long as you do not leave the UK for a significant period of time before then).
The applicable deadlines vary depending on whether we leave the EU with or without a deal.
1. If we leave with a deal?
If a Withdrawal Agreement is passed by Parliament, then there will be a transition period after the UK leaves the EU, which will last until the end of 2020 at the earliest. EU nationals who are residents before 31 December 2020 will be eligible for settled status once they have reached 5 years residence.
The deadline to apply for settled or pre-settled status will be 30 June 2021.
2. If we leave with“no deal”?
If the UK leaves the EU without a deal, then there will be no transition period. You will only be eligible for settled status if you are living and working in the UK on the day that the UK leaves the EU.
The deadline to apply for settled or pre-settled status will be 31 December 2020.
Can I apply for settled or pre-settled status now?
Yes, the settlement scheme is open for applications. You can find the application form here: https://www.gov.uk/settled-status-eu-citizens-families
Who can apply?
You can apply if you are an EU national, a national of an EEA country (Iceland, Norway or Liechtenstein) or a Swiss national and you are currently living and working in the UK.
What about nationals of the Republic of Ireland?
Irish nationals who are living and working in the UK do not need to apply for settled status, as their right to live and work in the UK is not governed by EU law.
Please note that we cannot advise on applications for settled status as this does not fall under the umbrella of employment law.
What could feasibly happen to your employment rights after Brexit?
The table below sets out what could happen to some of your key employment law rights.
Unfair dismissal– No impact by Brexit- domestic in origin– does not stem from the EU.
National Minimum wage – No impact by Brexit- domestic in origin– does not stem from the EU.
Unlawful deductions from wages– No impact by Brexit- domestic in origin– does not stem from the EU.
Statutory redundancy pay-No impact by Brexit- domestic in origin– does not stem from the EU.
Industrial action-No direct impact by Brexit, as provisions on strike action are purely UK-based.
Paternity leave– UK-based right – does not stem from the EU: Brexit will have no direct impact.
Shared parental leave -UK-based right – does not stem from the EU: Brexit will have no direct impact.
Flexible working-UK-based right – does not stem from the EU: Brexit will have no direct impact.
Pregnancy and maternity -This is a mix of EU and UK-based rights, but changes seem unlikely as the UK rights already go further than the EU minimum, for example providing 52 weeks’ maternity leave as opposed to the EU minimum of 14 weeks.
Parental leave -This is an EU-based right providing up to 18 weeks’ unpaid parental leave for each child. There is unlikely to be any change, however, as the right is for unpaid leave (thus limiting the uptake), and the age limit was actually increased in 2015 so it can now be taken up to a child’s 18th birthday.
Working time- This is an EU-based right. The UK has its well-known opt-out provisions in relation to the 48-hour working week. A future Government (especially Conservative one) is likely to favour employers having a more flexible approach and so remove this limit altogether. The rules which say that travelling time can count as working time may also be changed.
Holidays and holiday pay– This is an EU-based right. No significant changes are expected to holiday entitlement as the UK already exceeds the EU minimum (providing 5.6 weeks’ holiday as opposed to the EU minimum four weeks). What could be implemented, however, is a reversal of the current entitlement of workers on long-term sick or maternity leave to carry-over unused holiday entitlement to another leave year.
What could also be up for reversal is the requirement that employers must calculate holiday pay to reflect commission and overtime, which is presently subject to an EU ruling.
Collective redundancy consultation – This is an EU-based right.
Consultation periods were reduced in 2013 from 90 to 45 days for redundancies of 100 or more employees. There may be calls to increase the threshold of the number of affected employees, so that collective consultation is only triggered for redundancies of 100-plus rather than 20-plus, although trade unions would be likely to oppose this.
Other collective consultation rights may be subject to some change post-Brexit, to soften the requirements.
TUPE –This is an EU-based right.
There may be changes making it easier to harmonise terms and conditions following a transfer, or the watering-down of information and consultation rights.
Rights on insolvency –This is an EU-based right of employees to claim certain sums from the Secretary of State if their employer becomes insolvent, and is unlikely to change.
Agency workers –This is another EU-based right.
The right of agency workers to the same basic working conditions (for example, pay and annual leave) as equivalent permanent staff after 12 weeks was never warmly received when it was introduced either by the Government or employers, due to over regulation and complexity of the rules in practise. It is a likely candidate for change.
Discrimination- The UK already had protection against sex, race and disability discrimination pre-EU, but these rights have been extended by the EU, and additional protections added, including discrimination on the basis of age, religion, belief and sexual orientation.
It is unthinkable for any government to roll back the discrimination laws, which have become accepted (and expected) practise in the workplace. However, there may be a desire to introduce a cap on discrimination compensation (not currently allowed under EU law), similar to that for unfair dismissal, to deter spurious claims and cut the burden of compensation on employers.
Fixed-term employees- This is an EU-based right protecting fixed-term employees against less favourable treatment in comparison to permanent employees.Those arguing for less ‘red tape’ and a more ‘flexible’ labour market may target these rules.
Part-time workers –This is an EU-based right protecting part-time workers against less favourable treatment in comparison to full-time workers.
Those arguing for less ‘red tape’ and a more ‘flexible’ labour market may target these rules, however, some female part-time workers may be able to claim that any less favourable treatment amounted to indirect sex discrimination (since the majority of part-time workers tend to be female).
Data protection- This is an EU-based right
The EU General Data Protection Regulation (GDPR) is due to come into force in May 2018, introducing tougher rules for organisations that handle personal data, and higher penalties. The new regulations take direct legal effect without the need for any national legislation. Businesses will still need to continue preparing for the introduction of the GDPR, as negotiations are unlikely to be complete by May 2018.
The GDPR may still be relevant if the UK severs all ties with Europe, especially in circumstances where a UK organisation processes the personal data of EU citizens.
Bankers bonuses – There is presently a cap for certain bankers which were introduced by EU regulations.The directive imposes a limit that means the bonus cannot be more than the amount of a yearly salary, which can rise to up to two times the salary with shareholder approval.
The Government doesn’t like the cap because it constrains the freedom of the banks to determine pay, which could put them at a disadvantage when hiring top staff compared with banks in the US or the far east. There are concerns also that this has led to banks offering a higher fixed salary, which cannot be clawed back – regardless of how staff perform. The bankers bonus cap could very well be abolished.
What is the position for those wishing to come to work in the UK after Brexit?
From 1 January 2021, free movement of people within the EU will end and the UK will introduce a points-based immigration system.
The Home Office has issued The UK’s points-based immigration system: an introduction for employers. It contains guidance on the proposed points-based immigration system, which assigns points for specific skills, qualifications, salaries and shortage occupations. Visas are then awarded to those who gain enough points.