Employment Law and Brexit – Latest!
- In June 2018, The European Union (Withdrawal) Act 2018 (EUWA) was passed, providing for the UK to leave the EU on ‘exit day’ and providing for the content of a withdrawal agreement (if approved by Parliament) to be reflected in domestic law.
- The European Union (Withdrawal Agreement) Bill (WAB) must therefore pass before the UK leaves the EU.
- Clearly that hasn’t yet happened! On 11th April 2019 the European Council agreed an extension to the Brexit process to the end of October at the latest. The EU agreed that the extension can be terminated when the Withdrawal Agreement has been ratified but if there is no ratification soon and the UK does not take part in EU elections on 23rd May, the UK would drop out on 1st June with no deal.
- No deal Brexit is also still possible if MPs can’t agree anything else before 31st October and no further extensions are agreed.
Deal or no deal – 4 need-to-know points for employment law
1. No change until ‘exit day’ whenever that might be.
2. On exit day, the EUWA provides that:
- The European Communities Act 1972 (ECA 1972) will be repealed, ending the supremacy of EU law.
- EU law will be converted as it stands into domestic law, and laws made in the UK to implement EU obligations will be preserved.
3. If the Withdrawal Agreement (negotiated by Mrs May in November 2018) is in place:
- There then follows a transition period until 31st December 2020 (the Withdrawal Agreement permits a further extension until the end of 2022)
- During the transition period, the UK remains subject to EU laws, whilst retaining the right to make national laws which are no less favourable.
- After the transition period, the UK will be able to amend employment laws, subject to the commitments in the UK Withdrawal Agreement.
- Significantly, in March 2019, the government proposed to amend the WAB so that UK legislation post Brexit which would change EU retained laws on employment matters, will need to be assessed to ensure they uphold the commitment to what is called ‘non-regression’ (i.e. workers’ rights in the UK will not be reduced post Brexit) Also, Parliament will have the right to consider any future changes in EU law that strengthen workers’ rights or workplace health and safety standards, and vote on whether they too should be adopted into UK law.
4. In the event of a no deal Brexit:
- there would be no transition period.
- The EUWA would apply from exit day. This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law.
Deal or no deal – 4 need-to-know points for employing EU citizens post Brexit
1. The Settlement scheme for those EU citizens in the UK on Brexit
The Scheme opened fully on 29th March and it enables:
- Those EU citizens who have been living in the UK continuously for five years to apply for ‘settled status’.
- Those EU citizens who arrive before exit day (or before the end of the Implementation Period if the Withdrawal agreement is in place), but who have not been here for five years, to apply for pre-settled status.
- Five years’ continuous residence means that for five years in a row the person has been in the UK for at least 6 months in any 12 month period, except for: one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting), or compulsory military service of any length.
- The application process for settled and pre-settled status is free. There is Assisted Digital support for applicants in the UK who do not have the appropriate access, skills or confidence to complete the form.
- Irish citizens do not need to obtain settled status but other EU citizens, even those with Permanent residence, need to apply.
- The deadline for applying for settled or pre-settled status is 30th June 2021 if the Withdrawal agreement is in place, or 31st December 2020 in the case of no deal and no transition period.
2. Right to work checks
Government guidance issued on 1st April 2019 states that until 1 January 2021, EU, EEA and Swiss citizens will continue to be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card, and this remains the same if the UK leaves the EU without a deal.
3. EU citizens arriving post Brexit
The Immigration (European Economic Area Nationals) (EU Exit) Order 2019 has been made which provides that:
- EEA (which includes EU countries and Iceland, Liechtenstein and Norway) and Swiss citizens who arrive after exit day and wish to stay longer than three months will need to apply to the Home Office for European Temporary Leave to Remain (ETLR) within three months of arrival.
- Subject to identity, criminality and security checks, leave to remain will be granted for 36 months which will include permission to work and study.
- EU citizens wishing to stay for longer than three years will need to make a further application under the new skills-based future immigration system, which will begin from 2021.
4. Government guidance
An employer toolkit has been produced to help equip employers with the right tools and information (including an employee briefing pack) to support EU citizens and their families to apply to the EU Settlement Scheme.
On 1st April 2019, the government published guidance on Employing EU, EEA and Swiss citizens and their family members after Brexit
Information for individuals, businesses (sector by sector), and for UK nationals living in the EU and EU citizens living in the UK is found at
For UK Citizens working in the EU post Brexit, country by country information at https://www.gov.uk/uk-nationals-living-eu
If you would like advice on how any of the above applies to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
In giving comment and advice in the article, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss, we would be pleased to assist you.