HR · 25 September 2018

Brexit: What we know so far and what could happen to employment rights

Employers are advised to familiarise themselves with the current trading process with non-EU destinations
On 29march 2019, the UK will leave the European Union in a move known as “Brexit”. As we approach “Brexit Day”, business owners may be concerned that understanding over the eventual agreement is limited and there is uncertainty over what steps, if any, they can take in preparation.

As a significant proportion of UK legislation is heavily derived from EU law there is expected to be some impact on trading, worker rights and the free movement of people, regardless of the outcome of the ongoing negotiation process.

“Settled status”

In an attempt to respond to concerns from businesses regarding future workforces, a scheme was announced in June 2018 to allow indefinite leave for EU workers with “settled status”. EU nationals who have lived and worked in the UK for five years by 31 December 2020 will be eligible to apply, with applications only being rejected for “very good reasons”.

Furthermore, anyone who has not lived in the UK for the required period by this date can apply for “pre-settled status” which is automatically upgraded once five years? residency is reached.

The scheme applies to individuals of all EU member states except Irish workers who are exempt with rights for workers from Switzerland, Iceland, Liechtenstein and Norway still unconfirmed. Employers are strongly advised to encourage their workers to make an application before the cut-off date of 30 June 2021.

Although individuals may be able to apply after this date to join a family member in the UK, it is currently unknown what procedure, if any, will be implemented for EU nationals at this point. It is highly probable that those without this status will have to meet new visa requirements.

Read more about the impact of Brexit on small UK businesses:

Existing worker provisions

When questioned on worker rights, the government has confirmed that the EU Withdrawal Bill 2018, previously referred to as the Repeal Bill, has been constructed to directly transpose EU laws into UK legislation.

Therefore, existing worker provisions will remain the same regardless of the outcome of negotiations, with areas where domestic law exceeds EU law also remaining.

This confirmation has been called into question by legal experts, however, who have argued that the government will have the right to “pick and choose” which EU rights to dilute or scrap post-Brexit.

Whilst it remains to be seen how far the government will seek to develop this area, what is clear is that UK workers will no longer be able to directly refer questions to the European Court of Justice. This removes a reference point for workers who are challenging the interpretation of European laws in their case.

The government has also released guidance on various aspects if there is a “no-deal” situation after the UK leaves the Union. The guidance states all pre-established worker rights will remain and workers will still be covered by existing insolvency laws provided they work in UK-based organisations. Future trading arrangements may require customs declarations to be completed, resulting in the increased employment of customs brokers or warehousing and logistics experts.

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Kate Palmer CIPD is the head of advisory at law firm Peninsula and is a member of its senior leadership team. She joined in 2009 having held a senior HR manager's role in another large company. With a specialist background in facilities management in the NHS, Kate offers a wealth of employment law experience. She's an expert negotiator - one notable case was with the NHS's trade unions over terms and conditions in the Agenda for Change pay system.

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