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The Implications on Employment Law Post-Brexit

23rd Oct 2018
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As Brexit negotiations develop and with the increasing likelihood of a ‘no-deal’ Brexit, confusion surrounding employment law and the changes post-Brexit continues. Many still remain in the dark when it comes to laws governing employment and labour movement once the UK departs from the European Union (EU). The Migration Advisory Committee (MAC) report, commissioned by the government, has however shed some light on the situation.

Earlier this year, the government confirmed in the release of the White Paper that no employment laws based on EU legislation will be repealed and that as a result employers are unlikely to face any significant changes to their contracts post-Brexit. The MAC report however discloses that there are likely to be changes to the UK’s current point based system for immigration and the status of EU workers.

The MAC Report

The recent MAC report suggests that a post-Brexit system should make it easier for highly-skilled EU workers to move to the UK. The final report, which was published last month, suggests that the UK’s current point-based system for immigration should extend in order to cover EU migrants and should be altered so that it is easier for highly-skilled workers to gain permits to work in the UK opposed to lower-skilled workers, assuming the free movement of EU nationals comes to an end post-Brexit. The changes to the immigration system would revoke the current cap on the number of Tier 2 permits issued and would also broaden the tier to include medium-skilled EU workers. The changes to the system post-Brexit suggested by the MAC report would mean that an additional 142 medium-skilled occupations would be eligible for a Tier 2 visa provided they met the £30,000 salary threshold.

Despite the consistency of the immigration system and employment law, the agricultural industry would be given its own individual scheme in order to enable low-skilled workers to work in the UK post-Brexit. This poses its own risks and as a Brexit deal looms, an increasing number of people are expressing their concerns about the recommendations put forward by MAC, claiming that the suggestions won’t help to resolve the shortage of labour in retail, hospitality, health and social care sectors. 

Transitional Period

Provided a ‘withdrawal agreement’ is reached as opposed to a ‘no-deal’ Brexit, the transitional period between 29th March 2019 and 31st December 2020 will allow EU nationals to move freely whilst the UK and EU discuss labour mobility. However, if a deal cannot be made, then the free movement of EU nationals will swiftly come to an end and the government would put immigration arrangements in to place immediately.

Status of EU Workers

Post-Brexit, EU workers who have lived in the UK for five years or more, or will have done so by December 2020 can apply for a ‘settled status’ and remain in the country indefinitely. For EU nationals who have not lived in the UK for five years, they can apply for a ‘pre-settled status’ which grants them permission to live and work in the UK until they have been living in the country for five years and can then apply for a settled status.

EU Laws

Earlier this year, the government confirmed that no employment laws that were based on EU legislation would be repealed post-Brexit and so far this remains true, however it is the responsibility of Parliament to ensure this. The European Union Act of 2018 continues to ensure that both indirect European laws (such as the Transfer of Undertakings Regulations) and direct European laws (such as General Data Protection Regulations) continue to apply under the independent law of the UK. However, we could expect to see reform in a number of areas post-Brexit.

Confusion still remains regarding the implications for employment law in the wake of Brexit and until negotiations come to an end, nothing is guaranteed, including changes to independent laws and the status of EU nationals in the UK.

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