On January 1 2021, the UK officially exited the EU. As a result, EU laws and regulations no longer apply in the UK and that has created quite the turbulence on the legal scene. Businesses have had to face new immigration and employment laws, as well as changes to compliance regulations, such as replacing the CE mark with the UKCA mark on most products that are sold in the English, Welsh or Scottish markets. 

Employment law has consistently been a murky territory in the post-Brexit landscape. Despite assuring employees that their rights will be protected outside of the scope of EU legislation, some rather disturbing suggestions, such as removing the working hours’ cap and reducing maternity leave have been circulated publicly. This is why we decided to look into the facts and the rumours to outline what has changed in UK employment law so far and what might change in the future as a result of Brexit. 

What has changed: Employing EU Citizens after Brexit 

Prior to Brexit, UK employers could hire EU/EEA/Swiss citizens the same way as they would UK citizens – with no need for a work visa, a work permit or minimum salary requirements. From January 2021, new restrictions apply and the rules are different for EU/EEA/Swiss citizens who already live in the UK and those who are applying for jobs from outside the UK. 

EU/EEA/Swiss job applicants outside the UK

From 1 January 2021 people who wish to come to the UK to work must have a work visa. To receive one, the applicants must have secured a job offer from an approved employer sponsor that meets the minimum salary requirements. The general salary threshold is £25,600 but some people may still be eligible if they are paid £20,480 or over, depending on the role they are offered. 

As a business owner, if you wish to employ someone who is an EU/EEA/Swiss citizen, you will have to apply for an approved sponsor license

 

EU/EEA/Swiss job applicants who are already in the UK

Until 30 June 2021, the UK is still considered in a Brexit transition period during which you will not have to make any changes to the way you checked employment eligibility status before Brexit. However, from 1 July 2021, any EU, EEA or Swiss candidates who live in the UK will need to show evidence that they have been granted one of two immigration statuses by the HMRC under the EU Settlement Scheme:

 

  • Settled Status: Applies to people who had lived in the UK for 5 or more years continuously before 31 December 2020
  • Pre-Settled Status: Applies to people who had levied in the UK for less than 5 consecutive years before 31 December 2020

 

The above rules also apply to any current employees you have who come from the EU, EEA or Switzerland. If you employ a staff member from one of these territories who hasn’t applied for settled or pre-settled status before June 30 2021, from that date onward, they will be considered unlawful residents in the UK and may lose their eligibility for employment. The Government is yet to announce the exact procedures involved in handling this type of scenario. 

 

The employment and immigration law changes won’t affect Irish citizens who retain their right to work and live in the UK free of restrictions. 

What Employment Laws Could Change After Brexit 

Having cut a last-minute deal with the EU, the UK must abide by the signed EU-UK Trade and Cooperation Agreement which ensures that employee rights are protected even though the EU rules and regulations no longer apply to businesses in the UK. How much the domestic UK employment laws will change is yet to be seen, as the Government hasn’t yet given clear guidance regarding any changes but has demonstrated their willingness to consider moving away from the EU directives. 

Back in January 2021, in the space of just a few days, Business Secretary Kwasi Kwarteng confirmed and then scrapped an employment rights review that could have jeopardised key employment safeguards, such as the 48-hour work week, holiday entitlements and overtime pay. Following the public and political backlash of the initial proposal, the Government formed a task force led by former Conservative leader Iain Duncan Smith with the idea to put together a list of less controversial domestic employment law changes. 

On June 15 2021, the task force released a report proposing a list of 100 recommended changes to UK employment legislation that would overhaul the existing EU regulations that were in place until Brexit. The highlights of this report included the following:  

  • Replacing the EU’s GDPR privacy rules with a new set of rules that are more manageable for SMEs and charities
  • Removing the 0.75% cap on admin fees to incentify pension schemes to invest in start-up businesses
  • Changing the clinical trial testing rules imposed by the EU in light of the success of the Oxford/AstraZeneca vaccine development

The recommendations proposed by the task force are expected to be reviewed in the upcoming weeks and this could lead to a number of significant changes. The Labour party and the Trade Unions have previously expressed their concern about the impact of these changes on UK business owners and employees alike.

 

COVID-19 & Employment Law after Brexit 

The COVID-19 pandemic has undoubtedly changed the world of employment across the globe. Having left the EU, the UK can now make independent decisions about any employment law changes related to dealing with the aftermath of the pandemic. 

For example, EU countries, in general, cannot impose COVID-19 vaccination as a mandatory requirement for all employees. However, the UK is expected to do so in the very near future for certain sectors, meaning that employees could be forced to make a choice between having a jab or losing their job. If this happens, it could potentially lead to staff shortages and a wave of unemployment. Yet, due to the fact that Brexit is now in effect, it is a very real possibility. 

 

Other COVID-related changes that have been openly discussed in the UK include removing collective redundancy meetings from the redundancy process designed by the EU and introducing a hybrid approach to working which would allow employees to work from home, use flexible hours or opt in for part-time agile working. 

 

A Final Word 

Brexit has opened up the door for domestic law changes and this creates a huge amount of uncertainty for both employers and employees. The constant shift in the Government’s stance on this topic has made it hard for workers and business owners to navigate, which is why we are expecting to see more and more people on both sides of the fence seek advice from employment law experts to ensure that they are complying with the most recent legislation. 

This situation also provides a challenge for legal professionals, as we find ourselves waiting for the next big announcement to change UK employment law as we know it. From fears of employee rights, such as the 48 working hours’ cap, maternity leave allowance and anti-discrimination laws, being eroded to a whole new set of requirements for employers to meet, we could potentially experience the biggest shift in domestic UK employment legislation in years.