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Brexit: The changes in store for employment law

The UK has left the EU and many things will change as a result of that. However, Brexit has only touched the area of Employment law lightly so far. Only three areas have, as yet, been affected by the withdrawal:

  • Employing EU citizens

  • Membership of European Works Councils

  • Employer insolvency for UK employees working in the EU

Recruiting and Employing EU/EEA citizens

If a person is an EU citizen, they will be able to apply to the EU Settlement Scheme (EUSS) for either settled or pre-settled status to continue living in the UK. The deadline for applications to the EUSS is 30th June 2021. To be eligible for settled status,a person will typically need to:

  • be an EU citizen, or a family member of an EU citizen;

  • have started living in the UK by 31st December 2020;

  • have lived in the UK for a continuous 5-year period (known as ‘continuous residence’)

Employers can help EU citizen employees and non-EU citizen family members to apply to the EU Settlement Scheme by directing them to the information available on the government website.

It is the employee’s responsibility to make an EUSS application. They do not have to tell their employer that they have applied, or what the outcome of the application is. Likewise, the employer should not check to see whether an employee has applied.

From the start of 2021, those who are not eligible to apply for the EUSS are subject to the new UK points-based immigration system.

There will be no change to right to work checks until after 30th June 2021 and employers will not need to carry out retrospective checks on existing EU employees.

British citizens working in Ireland

British citizens continue to have the right to live and work in Ireland as part of the Common Travel Area (CTA). The CTA is an arrangement between the United Kingdom (UK) and Ireland, beginning in 1922, that – amongst other rights - gives the right to travel freely between both countries. The CTA is not dependent on the European Union and the continuing membership of both countries, or either country. Under the 2019 Memorandum of Understanding, signed by the UK and Irish governments, the CTA was reaffirmed and the rights of UK and Irish citizens were identified. The Memorandum affirmed the commitment to maintain the CTA following Brexit.

Irish citizens working in the UK

Irish citizens do not need to apply to the EUSS to continue living in the UK as their right to do so is protected under the CTA. However, members of their family from outside the UK and Ireland will need to apply.

European Works Councils (EWC)

A European Works Council (EWC) provides a framework for information and consultation with employees or representatives. To be covered by the EWC legislation, an organisation must have at least 1,000 employees across the European Economic Area (EEA) and have at least 150 employees in two separate Member States (The EEA comprises European Union member states together with Norway, Iceland and Liechtenstein).

From the start of 2021, anyone employed in the UK can no longer ask their employer to set up a European Works Council.Only such requests submitted before 1st January 2021 are permitted.

Multinational companies will need to make a decision on how to handle the ongoing involvement of any UK reps in their EWC. Where a multinational company has a head office in the UK, or a UK rep in their EWC, a new rep that is based in an EU member state will need to be assigned instead.

Insolvent employers with employees working in the EU

If a company becomes insolvent and is unable to pay its employees statutory redundancy pay, an employee who is working in the EU can make a claim for statutory payments from the national guarantee fund of the EU member state in which they live. However, depending on how that country has opted to extend its protection to non-EU employers and employees, individual rights may vary, so expert advice should be sought.

Things to come

Despite speculation in the media, there is no current indication that the government intends to amend workers’ rights following Brexit. However, it is anticipated that there may well be some changes in the pipeline regarding areas of employment law which derive from EU law. Employers should keep an eye on employment law websites or their own legal advice specialists to ensure that they are not taken by surprise when changes are made as it is likely that such changes will affect most if not all employers in the UK.