January 5, 2021

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    Following Brexit, not much will change in the world of employment law immediately, except for immigration. Here’s a quick summary of where we stand in January 2021.

    1. Immigration

    This is where the big changes have come in. It is the end of the freedom of movement within the EU. So in turn EEA employees may lose their right to live and work in the UK.

    Settlement under the EU Settlement Scheme or sponsorship by employers are key options for EEA employees in the UK.

    For more detail on how Brexit will impact immigration, read our blog, “3 Brexit Basics for Employers“.

    2. Workers’ rights

    The UK has committed not to reduce the level of protection for workers or fail to enforce employment rights in a manner that has an effect on trade. The commitment is reciprocal. It is about having a level playing field between the UK and EU countries, ensuring open and fair competition.

    If there is a dispute about the level of protection, counter measures can be taken by the UK or EU. This is subject to arbitration via a “Panel of Experts procedure”.

    3. European Works Councils

    These will not be able to operate as they did previously. They currently exist for information and consultation purposes across different European countries where a multinational company has operations. The arrangements will need to be reviewed if they haven’t already been addressed.

    4. Employment Law

    EU-derived employment law will continue as is, because it’s already been embedded into separate, stand-alone UK legislation. However, the Court of Appeal and Supreme Court do not need to follow pre-2021 European Court of Justice (ECJ) decisions, which may mean that we start to see a change in the tide of decisions and a divergence from the EU position – on holiday rights, for example.

    Also new European Court of Justice (ECJ) decisions and new EU Directives from 2021 (from which a lot of the UK’s existing legislation originated up to 31 December 2020) need not be followed, within reason.

    Although the UK government can now decide what laws it will make, it will want to attract talent from the EU. It will also want to avoid damaging counter-measures if the level playing field tips off balance significantly  with the choices it makes, so it will be a weighing up process.

    5. Human Rights

    The UK will continue to respect the rights set out in the European Convention on Human Rights which are incorporated into the UK’s Human Rights Act 1998. These are relied on from time to time by employees bringing claims against employers (referencing, for example, the right to privacy).

    6. TUPE

    What about TUPE? This will remain unaltered for now. In fact, the UK gold-plated the EU originating Directive when the UK was still in the EU so UK legislation already goes beyond the EU provisions originally required.

    7. Data Protection

    The UK has deemed the countries in the EU adequate for data transfer out but we await the result of the EU’s review of the UK’s adequacy (for transferring data in from the EU to the UK). There is a grace period now (of up 6 months) during which the UK is still considered to have adequacy while the EU consider it further.

    In the meantime, it is wise to review your Privacy Notices, Privacy Policies and Data Protection Policies (and related documents) to make sure they work now we have left the EU.

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