As part of the Withdrawal Agreement, agreed with the EU in January 2020, EU employment law continues to apply to the UK until the end of the transition period on 31st December 2020.  But what happens after Brexit, on 1st January 2021?

After 31st January 2021 we are no longer updating this post – please see our main page here.

We outline what is currently clear, and what is not yet understood!

  1. UK legislation (implementing the Withdrawal Agreement) says that existing EU law will be converted in 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.
  2. 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.
  3. 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 over time.  You can see our guide to what law derives from the EU and what laws are domestic here.
  4. In an unsurprising development on 19th January 2021, the Business Secretary, Kwasi Kwarteng, confirmed that his department is examining EU protections on worker’s rights, but insists they will not be watered down!  I’m surprised it took them that long really!! You can read the details here.
  5. 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.
  6. Immigration law: a new immigration system came into force on 1 December 2020 and, if arriving in the UK from 1 January 2021, EU and non-EU nationals will be treated equally. 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.