HR · 20 September 2019

What to know about employment rights in a no-deal Brexit scenario

There is currently a real risk of the UK leaving the EU without a deal. There are numerous possible legal ramifications and question marks over a no-deal Brexit, but what implications does this have for UK employment law and how should employers respond if there is indeed a no-deal Brexit on the 31 October 2019?

What can employers do now?

Employers should be encouraging their non-UK EU employees to make an application to the EU Settlement Scheme here, the deadline for this will be in December 2020.

Employers should check with their employees that they have made this application. All employers have to ensure that they comply with immigration laws and ensure that they do not employ anyone who does not have legal rights to work in the UK.

Depending on what happens it is important that employers stay up to date on immigration requirements for non-UK EU members of staff.

What will happen on a no-deal Brexit?

EU employment law will be converted into UK law under the European Union (Withdrawal) Act 2018. This Act will mean that pre-Brexit decisions of the European Court of Justice will be binding on most UK tribunals and courts, however, such decisions will not need to be followed by the Supreme Court.

Data

In terms of Data Protection following Brexit, GDPR will still apply to any dealings with anyone in the EU. Businesses may need to put in place data transfer agreements in the form of standard model clauses to EU countries to transfer data to and from the EU.

GDPR was effectively made UK Law by the Data Protection Act 2018 so the same rules, at least for the foreseeable future are likely to apply.

However, all GDPR / DPA 2018 policies for businesses will need to be reviewed and updated to deal with any divergence and any changes which may come from EU cases and UK cases; which may eventually become quite different and depend largely on how the laws are going to be interpreted. Businesses who handle any data belonging to an EU individual must keep abreast and ensure compliance with both UK and EU rules.

Changing landscape

Whilst it’s not helpful for employers, we really do need to ‘watch this space’ in terms of employee rights changing, it may be for the worse or it may be for the better.

Employees rights may be reduced and not enhanced as previously discussed by the government.

Much of UK employment law is based on EU regulations and initiatives. For example even the Working Time Directive may be revoked. This would result in no EU rules on working time limits. This could mean employees and workers have no choice but to work longer hours.

There could also be an end to free movement of persons, which means that less workers will be available for businesses to employ, which can provide uncertainly and instability for businesses.

What can you do about it now?

Employers should be already considering the position of employees on international assignments and international commuters in relation to qualification for settled status.

If plans have not already been implemented for a ‘hard Brexit’ it is fundamentally important that provisions are put in place now to ensure that the Employer does not fall foul on ensuring there is a right to employ all employees.

Aside from that it is important that all businesses remain up to date with all current employment rules. So, even if these change and evolve you come from a position of strength.

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ABOUT THE EXPERT

Karen Holden is an award-winning solicitor and founder of A City Law Firm (ACLF), the go-to lawyers for entrepreneurs, startups, scale-ups, those seeking investment. In addition to being very successful lawyers for businesses , ICOs and family law, ACLF are now the UK's leading LGBT law firm and surrogacy specialists. Karen is a regular media commentator, panellist and event speaker.

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