What does the Brexit deal mean for employers?

 

Last updated 10:15, 3 February 2021

Shortly before the end of the Brexit transition period, the UK and EU reached agreement regarding the future relationship. The trade and co-operation agreement has implications for the future of employment law and policy in the UK.

1. What does the new trade agreement say about changes to employment law?

The European Union (Withdrawal Agreement) Act 2018 (the ‘Withdrawal Agreement’) copied all EU-derived employment laws into domestic law, so these would continue to apply in the UK regardless of the transition period ending. The Withdrawal Agreement did not contain any guarantees about what would happen in the future regarding employment law and policy.

The new trade agreement says that the UK and EU are able to create and amend their own employment law going forwards. Such changes should not weaken or reduce the level of employment rights in place as at 31 December 2020, in a manner affecting trade or investment (the ‘Non Regression Principle’). So the UK cannot weaken employment protections to give UK employers a competitive trade or investment advantage over the EU.

If a future change to UK employment rights has a material impact on trade or investment, the EU may take “rebalancing measures” e.g. by imposing tariffs on goods or referring the matter to independent arbitration by a panel if both sides cannot agree a resolution.

2. Will my employees’ professional qualifications be recognised in the EU?

No. Employees with a professional qualification gained in the UK will no longer have this automatically recognised in an EU member state, and vice versa. This may result in difficulties where employers provide professional services across different countries.

UK and EU member states will seek to agree profession-specific arrangements in the future. Until this happens, the government provides guidance on professional qualification recognition which depends on:

• • The type of professional qualification;

  • Whether the employee’s qualification had been formally recognised in the EU member state prior to 31 December 2020; and

  • Any specific rules regarding the professional qualification which apply in that EU member state.

There is mutual recognition of professional qualifications between the UK and Iceland, Liechtenstein, Norway and Switzerland.

3. Has anything changed for business travel?

This depends on the length and purpose of the business travel. As well as following new rules which apply to all passengers (e.g. having 6 months left on a passport at the date of travel), employees on business travel may need a visa, work permit or other documentation if the employee:

• Plans to stay in a different country for longer than 90 days in a 180-day period;

• Is taking part in an intra-corporate transfer for any period of time (i.e. transferring from a company’s UK branch to a branch in a different EU member state);

• Is carrying out contracts to provide a service to a client in another EU member state where the employer has no presence.

The Government guidance here confirms the documentation required for business travel to EU member states, Iceland, Liechtenstein, Norway and Switzerland.

4. What about working time for drivers travelling between the UK and EU?

The new trade agreement confirmed current rules for drivers of vehicles transporting goods between the UK and EU will continue including:

• Working time;

• Breaks;

• Rest periods; and

• Tachographs. 

5. What UK employment laws could change in the future?

The Business Secretary had previously stated that the Department for Business, Energy and Industrial Strategy would be reviewing how EU-derived employment rights could be changed after Brexit. However, he has now confirmed that this review of workers’ rights has been cancelled.

The employment law landscape will inevitably change over the coming years. Due to the Non Regression Principle, wholesale changes of existing EU-derived employment laws are unlikely. It has been rumoured that the Working Time Regulations which implement the EU Working Time Directive and which set a maximum 48-hour working week might see some change.

6. Will the UK have to implement future EU employment law?

No. Provided that the Non Regression Principle is adhered to, the UK can choose whether or not to introduce similar laws to those being implemented across the EU. This has already happened in a few areas, e.g. the UK Government has promised a future Employment Bill which will introduce carer’s leave, and a right to request a more stable and predictable contract. From August 2022, EU member states will need to implement such rights as a result of the EU Work-Life Balance for Parents and Carers Directive, and the EU Transparent and Predictable Working Conditions Directive.

7. What does my organisation need to consider when recruiting from EU countries?

The end of the transition period meant the introduction of new immigration rules for European nationals arriving in the UK for the first time. You can read specialist advice from the Freeths Business Immigration team on the Brexit Exchange, including:

• The new Rules for the post-Brexit immigration system

• Do I need to change my right to work process for European nationals post-Brexit

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Head to our Brexit Exchange where you will find all the latest updates and developments from our experts, regarding Brexit and how that affects businesses and individuals in a range of areas.