Brexit: impact on employment law and EU workers

What effect will Brexit have on employment law?

Many significant areas of employment law are based on EU law, such as working time rights and employee rights on the transfer of a business under TUPE. After the UK leaves the EU, with or without a deal, EU employment law will be converted into UK law. Depending on the terms of any deal reached with the EU, workers’ rights under EU law should continue to apply during any transition period.

The government has announced its commitment to maintaining workers’ rights beyond the end of the transition period. According to an announcement in March 2019, this means that whenever Parliament considers a new law which could affect pre-Brexit employment rights, the government will have to make a statement on whether the new law honours this commitment. Parliament will also be given the opportunity to vote on whether any new EU employment law should be introduced in the UK.

If the UK leaves without a deal, the government may introduce legislation to change these rights without having to keep to the minimum standards set under EU law, for example limits on working time and agency workers’ rights. While the government may no longer be legally restricted from making changes, political considerations will come into play when thinking of rowing back on long-established workers’ rights.

However, with Theresa May’s recent cross-party effort to agree an approach to Brexit, the Labour Party may now have a much greater influence on how worker rights are affected going forward. Labour has consistently said that worker’s rights must be protected as a priority under any Brexit deal, as well as calling for a Customs Union. Any agreement reached between the two main political parties is therefore likely to have to go further than the Government previously intended to ensure worker’s rights are unchanged.

What effect will Brexit have on EU workers?

The fate of EU workers in the UK depends on whether a deal is reached or not. If the UK’s agreement with the EU on citizens’ rights is put in place, there will be a transition period until 31 December 2020. Until that date, EU citizens in the UK will be able to apply under the settlement scheme for the right to stay indefinitely if they have five years’ residency here. More recent arrivals who have not been resident for five years by 31 December 2020, will be able to apply for pre-settled status to enable them to accrue the five years’ residency.

If there is a no-deal Brexit, only those EU citizens who are already resident in the UK on the date of leaving would be able to apply for settled status. It is expected that a new immigration system would come into force on 1 January 2021. Until then, EU citizens wishing to stay longer than three months in the UK will need to apply for European temporary leave to remain.

Employers of EU workers should continue to support them in making applications under the settlement scheme. Those employers who rely on EU workers should identify areas of the business that are particularly at risk if there are fewer EU workers coming to the UK and look into ways of mitigating the risks.

Chris Tutton