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HR protocols and employment law post-Brexit

Whatever the size of your business, keeping up to date with employment legislation is essential. With a huge variety of changes taking place post Brexit, it comes as no surprise that employers feel overwhelmed and confused about what/how/when changes need to be made in the workplace.

Here we break down the key things to understand and consider when it comes to the future of employment legislation in the UK so that you can easily see where and how these changes may impact your business:

  1. ‘The Deal’

The EU/UK Trade and Cooperation Agreement (TCA) defines the employment standards and restrictions for personal data transfers from the EEA to the UK.

In general employers will see little difference in UK employment law post Brexit. However, policies and practices will need to be changed in certain areas (such as worker mobility and GDPR), and potentially in the future to take into account any divergence in employment laws.

2. How does the TCA affect employment law?

The TCA does not change UK employment law, but it limits the ability of the EU and the UK to change their employment laws in the future. This is because, as a condition of receiving trade benefits (for tariff and quota-free trade), the EU and the UK have agreed not to change the levels of employment protection in place as at 31 December 2020 (“exit day”) in a manner that affects trade or investment between them, including by failing to enforce such protection effectively.

The UK is free to manage employment law, but risk consequences if employment legislation is amended in a way that affects trade or investment between the UK and Europe. The UK cannot attempt to win a competitive edge over its European neighbours by offering a lower cost, or less regulated, employment law regime than the other.

It is highly likely therefore that the UK will maintain most of the employment legislation in line with EU law as at exit day level.

The UK has also agreed to remain operating within the guidance of the European Court of Human Rights under the agreement so it is clear that alignment will be key to future compatibility.

3. Can employers expect further UK employment law changes from 2021?

Whilst the UK can amend its own employment legislation, however, there appear to be no changes on agenda. The UK Government has confirmed that its aim is to protect and enhance not reduce employment rights.

The employment changes in 2021 developed employment rights i.e. on neonatal leave and pay, maternity redundancy protection, flexible working as a default (unless employers have good reasons not to allow it) and rights of vulnerable workers to request a more predictable and stable contract after 26 weeks’ service.

We hope that we might seem some adaptations to the more restrictive aspects of EU legislation, such as on holiday pay calculations, holiday carry-over and working time calculations to allow employers more flexibility, in our post covid world, without undermining employee rights.

4. How will we work with the European Court of Justice?

European Court of Justice (ECJ) rulings will continue to be influential as UK courts and tribunals must have regard to those rulings given up to exit day (“retained EU case law”) when deciding a dispute concerning retained EU law.

The Supreme Court and Court of Appeal and the corresponding courts in Scotland and Northern Ireland may, however, depart from retained case law as they can from their own case law. This could lead to some divergence in the future.

UK courts and tribunals may also have regard to any new ECJ rulings that are relevant to matters of retained EU law. This could mean litigation in areas such as holiday pay – becoming all the more complex, lengthy and costly given the need to consider, potentially, four bodies of case law – retained EU case law, domestic case law (both before and after exit day), as well as new ECJ rulings that may be relevant to the dispute.

5. Do employment contracts need to be amended?

All contracts and agreements that reference EU legislation or requirements should be updated to identify the appropriate piece of UK legislation.  Any contracts not amended since April 2020 also need to be reviewed in order to ensure legal validity.

6. How is employment mobility affected?

The end of free movement between the UK and Europe has material impact across many different types and styles of employment.

The UK points-based immigration system applies to all those seeking to work in the UK, with reciprocal immigration controls for those from the UK wanting to work outside the UK.  

Intercompany transfers and project based working solutions are heavily impacted but some forms of business travel are permitted without the need for a Visa. As long as they travel does not exceed 90 days in any six-month period and is in line with the specific details. However, for periods of non-acceptable work or that exceed 90 days, work visas will be required.

7. Checking employees’ right to work

Employers will have to check applicants’ original right-to-work documents where possible. During the pandemic it has been acceptable to do this virtually. However, the Home Office have now said that this would no longer be the case from 31st August.

Online checks will only be possible if employees have been provided a share code by the Home Office, which enables them to prove their immigration status.

There is also likely to be an uplift in immigration checks after 31 August, when the deadline for EU workers gaining settled or pre-settled status closes. However, employers are still awaiting fresh guidance on how to conduct Right to Work checks on EEA nationals after that date.

Note on the European Works Councils (EWCs)

EWCs can no longer operate validly from the UK from 2021. Most businesses that operate a European Works council will have long been aware of the changes however it is an interesting point to consider when working in or with larger organisations.

To find out more about the impacts of Brexit on your business or any specific worker mobility or contractual requirements post-Brexit please contact ViewHR.