Consideration of Some Employment Law Implications of a No-Deal Brexit

With the current uncertainty over both the suspension of parliament and the prospect of a no-deal Brexit, it is sensible for employers to review some of the potential employment law implications of a no-deal Brexit.

In respect of Brexit, one of the key considerations is the future of EU nationals living and working in the UK. In the event of no-deal, the EU Settlement Scheme will still be in place, allowing EU nationals the opportunity to apply for indefinite right to remain. However, in the event of no-deal, only those already living in the UK by 31 October 2019 will be able to apply for settled status. The deadline for applications in a no-deal scenario will be 31 December 2020.

European Economic Area (EEA)/Swiss citizens and their family members who have lived in the UK for five years or more at the date of application can apply for ‘settled status’. Those individuals who have not been living in the UK for five years will be granted ‘pre-settled status’ until they have reached the five-year threshold, at which point they will be granted settled status. This requirement to apply for settled status does not apply to Irish nationals, who are automatically deemed settled in the UK and so are not required to apply for settled or pre-settled status.

Given the uncertainty over the post-Brexit immigration position, it makes sense for employers to try to bring forward recruitment start dates to ensure that proposed new employees who are non-Irish EEA/Swiss citizens enter the UK before 31 October 2019.

Under the European Union (Withdrawal) Act 2018, in the event of a no-deal Brexit all EU employment law will be converted (as it was before Brexit) into UK law. The Employment Rights (Amendment) (EU Exit) Regulations 2019 will make some small technical changes and introduce new provisions intended to preserve UK-located European Works Councils but employment law will otherwise remain the same for the time being. Further down the line, the UK government may take the opportunity to dismantle EU-derived employment laws, post-Brexit. However, it’s worth pointing out that some aspects of UK employment law – such as equality legislation - go further than EU minimum requirements. After a no-deal Brexit, even if the UK government does decide to repeal some EU-derived employment rights, there are still likely to be areas of employment law where the UK goes further than the EU.

Information as to how individuals should apply for settled status can be found here: https://www.gov.uk/settled-status-eu-citizens-families .

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.