After Brexit? (last updated 4th March 2021)……
As part of the Withdrawal Agreement, agreed with the EU in January 2020, EU employment law continued to apply to the UK until the end of the transition period on 31st December 2020. But what happens after Brexit, from 1st January 2021?
We outline briefly what is currently clear after Brexit, and what is not yet understood from the Trade and Cooperation Agreement!
- UK legislation (that implements the Withdrawal Agreement) says that existing EU law will be converted into UK law and referred to as “retained EU law“. Therefore existing EU derived employment legislation will remain the same until it is changed by any future UK domestic legislation. The UK has agreed with the EU that it will not reduce employment rights below the standards that existed on 31st December 2020 in a way that affects trade or investment. However, the UK can diverge from future EU employment laws but the EU may apply ‘rebalancing measures’ if these changes have a material impact on trade or investment.
- Under the Withdrawal Agreement UK Courts will no longer be bound by new decisions from the Court of Justice of the EU after 1st January 2021. However they will still be bound to interpret ‘retained’ EU law on existing decisions of the CJEU (“retained EU case law”). But, the Withdrawal Act allows the UK Supreme Court and the High Court of Justiciary in Scotland to depart from retained EU case law if they consider it “right to do so” – in addition the Government has announced that this power to ‘depart’ will also be extended to the Court of Appeal and the Inner House of Court of Session; but the High Court and the Employment Appeal Tribunal (EAT) will not be allowed these powers.
- It is possible that existing EU derived employment legislation (retained EU law) like The Working Time Regulations, The Agency Workers Regulations and TUPE may be amended by the UK Government over time. You can see our guide to what law derives from the EU and what laws are domestic here.
In an unsurprising development on 19th January 2021, the Business Secretary, Kwasi Kwarteng, confirmed that his department was examining EU protections on worker’s rights, but insisted they would not be watered down. You can read the details here.
So, on 25th January 2001 the Labour Party held an Opposition Day motion to support protecting holiday pay entitlements and safe working hours limits (under the Working Time Regulations). The House of Commons approved the motion, by 263 votes, and the Conservatives again abstained from voting. You can read more details here.
However, on 27th January, The Guardian newspaper reported that the Business Secretary had told ITV’s Robert Peston that “So the review is no longer happening within the Department for Business, Energy and Industrial Strategy (BEIS)”. We’ll see what happens next!
- Immigration law: a new UK immigration system came into force on 1 December 2020 and now, when arriving in the UK from 1 January 2021, EU and non-EU nationals will be treated equally. Freedom of movement to and from the EU and UK has ceased, which is the most significant people-related issue of Brexit. Employers recruiting EU nationals to arrive and start work in the UK from 1st January 2021 will need to ensure the worker has a correct visa in place. EU nationals that are already in the UK and have applied (or will apply ) to the EU Settlement Scheme can continue to be employed. You can read more details about the new immigration rules here. It’s, of course, complicated.
Of course this also affects UK nationals going to the EU to work and live. For UK citizens who visit EU countries for business reasons, they can now do so only as short-term visitors, allowed to spend up to 90 days in the EU within any six-month period without making a visa application. Short-term visitors to the EU can undertake a number of business activities, which include:
- meetings, consultations and conferences;
- independent technical, scientific and statistical research;
- market research;
- training in techniques and work practices, but only in the form of observation, familiarisation or classroom instruction. Hands-on training is not allowed;
- trade fairs and exhibitions in a promotional capacity, without selling;
- taking orders, negotiating sales and signing contracts;
- purchasing goods or services for an enterprise;
- installers, repair and maintenance personnel and supervisors supplying services or training workers pursuant to a warranty or service contract incidental to the sale or lease of equipment from a UK entity;
- commercial transactions by management personnel and financial services personnel;
- tour and travel agents, guides or operators accompanying a tour from the UK; and
- translation and interpretation services.
UK nationals travelling to the EU for business are not permitted to work, i.e. they cannot service contracts between UK providers and EU consumers; they cannot deliver goods or supply services themselves; they cannot sell goods or services directly to the public.
UK nationals who want to live in the EU are now classed as “third-country” citizens, so they are subject to stricter admission requirements for residency purposes in EU countries.
- Data Protection – the original EU GDPR will no longer apply in the UK, but the UK has retained the GDPR in domestic law in the UK GDPR legislation and the Data Protection Act 2018. The UK is currently seeking an ‘adequacy‘ decision from the EU to continue to allow the free flow of data between the UK and EU; in the interim the EU has agreed a ‘bridging mechanism‘ to allow a free flow of data between the EU and UK temporarily for at least four months from 1st January 2021 (which can be extended to 6 months). At the end of February 2021 the European Commission gave a draft data adequacy decision, which paves the way for the continued free flow of data from the EU and the UK. The decision will now go to the European Data Protection Board, which has to give an opinion. Then the European Commission will request the green light from Member States’ representatives. Following that, the European Commission could adopt the final adequacy decisions for the UK. The above steps should be completed before 30 June 2021, when the temporary arrangements under the bridging mechanism will cease. As with all adequacy decisions, any resolution on UK-EU data flow will also be mandatorily reviewed after four years and will be upheld only after a satisfactory review.
- Human Rights – as part of the Trade and Cooperation Agreement the UK continues to respect the rights set out in the European Convention on Human Rights (ECHR). The wording in the Agreement does not require the UK to give effect to the ECHR in its domestic law, and it appears that the UK is able to amend or replace the Human Rights Act 1988 (which implements the ECHR into UK law), but only in a way that upholds the ECHR rights! hhmmm
If you have any questions please let us know and we’ll try to help!