Immigration policy and considerations

Currently, EU nationals enjoy free movement and have the right to live and work in the UK, and reciprocally, UK nationals in other EU countries. Under the terms of the Withdrawal Agreement between the UK and the EU, this position will continue until the end of December 2020.

The EU Settlement Scheme continues to operate and will enable EU citizens already living in the UK to apply for settlement indefinitely. The deadline for applications is 30 June 2021. In the event of a no-deal Brexit – the application deadline for the scheme is 31 December 2020.

When free movement does end, the government plans to install a points-based immigration policy and minimum salary thresholds. More details around this will be available early in 2020 from the Migration Advisory Committee (MAC). However, the CIPD will continue to work with government to ensure any new immigration system meets employer need. In fact, the CIPD has learnt that the MAC has already drawn on findings from our recent report which explores these issues.

How Brexit and these policy proposals evolve remain to be seen and the CIPD will continue to keep members informed on developments. Employers meanwhile, should take the opportunity to consider their employees and how they may be affected by the potential changes in circumstance.

Our updates and guidance below provides practical help for employers to understand and manage these and other considerations such as:

  • What does Brexit mean for employees who are EU nationals?
  • How can they be given useful and reassuring information on an inherently personal and uncertain topic?
  • What needs to happen so that they and their families can continue to live in the UK?
  • What about employing EU nationals in the future?

EU withdrawal process and effect on employment law

The negotiated terms for withdrawal agreed between Theresa May and the EU has been soundly rejected by Parliament. New Prime Minister, Boris Johnson, must now agree new terms and pass these through Parliament, or the UK will leave the EU without a deal. In the event of a no-deal, the UK will leave without transitional arrangements in place and its future relationship with the EU left undefined.

Leaving the jurisdiction of the Court of Justice of the European Union may take place at a later date, depending on the terms of the final departure (the UK will still be bound by decisions from the European Court of Human Rights which is not an EU institution). When it does happen, it will likely lead to case law changes as employment cases go through the appeal process. Holiday pay and accruing holiday on long-term sick leave are prime examples of where change could arise, but this will be incremental and Parliament could introduce legislation to deal with the current issues before this happens.

The withdrawal will not, of itself, repeal UK employment laws or immigration rules wholesale. Parliament will need to repeal the European Communities Act 1972, but many of the UK’s employment laws from Europe or stemming from European Directives have been introduced through other UK legislation. Each individual law would need to be amended or repealed one by one. Views differ as to which, if any, employment legislation will be dismantled following the UK’s departure from the EU.

However, several areas of law in the HR sphere will undoubtedly be reconsidered once the UK’s withdrawal occurs, not least employers’ consultation obligations when restructuring and planning redundancies. A number of other laws are also likely to come under the spotlight.

Equality rights

Many UK anti-discrimination provisions predate EU obligations – sex, race, disability and protection beyond employment into goods and services, all existed before the UK became an EU Member State. A more likely change could be to place limits or caps on discrimination compensation awards.

Holidays and working time

Holiday entitlement flowing from the EU Working Time Directive is another area likely to be debated. The 48-hour working week and the rules on opting out may well be top of the list for repeal, but will the UK really reduce paid holiday? Will holiday pay calculations change (for example, by excluding overtime and commission in future)? Even if the law changes, this will not override employees’ existing contractual rights.

Atypical workers' rights

EU-driven protection for agency, part-time, fixed-term and posted workers has been introduced in the UK. Those businesses using or supplying contingency workers may gain more freedom following the UK's withdrawal from the EU.

Transfer of undertakings (TUPE)

The UK’s TUPE provisions derive from the EU Acquired Rights Directive and we are likely to see changes in the rules restricting the harmonisation of terms and conditions after a TUPE transfer. On the other hand, the UK itself extended TUPE rights to ‘service provision changes’ through domestic law, not because it was obliged to do so by the EU.

Data protection

The EU General Data Protection Regulations have direct effect on member states and will require changes to the UK’s data protection law and practices. Timing is a major issue as they have to be implemented by May 2018. Unless and until exit occurs, the UK remains a member of the EU and will be required to comply, even if the UK expects to repeal these laws subsequently. Regardless of this, how many businesses will face difficulties in their cross-border trading if they opt out of these provisions even if UK law allows this?

CIPD Learning Courses

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Our Brexit webinar brings together leading experts from the public and private sector, employment law and the CIPD's own internal expertise to answer your questions on discrimination, tax and GDPR

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