How will Brexit impact employment law?

October 17th 2018 | Posted by Phil Scott

The political storm of Brexit continues to rage, but organisations are still left in the dark when it comes to how it will change their day-to-day operations.

What will happen to employment law and the movement of labour after Britain leaves the EU? What changes to employment law will your HR department need to know?

According to CIPD research, employers do not want major changes to employment law post-Brexit. However, this could change if an over-restrictive immigration system hinders their progress (if free movement was to end).

Employee immigration laws

The newly formed Migration Advisory Committee (MAC) is currently working to advise the government on Brexit immigration policy so we may have more of an idea soon.

MAC has suggested that, if free movement of EU nationals ends post-Brexit, the UK’s current Points Based System should be altered so that more skilled than lower-skilled workers can gain permits to work here.

In this scenario, only the agricultural sector would be allowed to receive lower-skilled immigrants for employment.

But employers groups are concerned that these recommendations wouldn’t address labour shortages in sectors such as hospitality, retail, health and social care sectors without more reforms.

Assuming a withdrawal agreement can be reached, there will be a transitional period until the end of 2020, where the free movement will remain while they work out how to handle it.

However, without a deal, there would be no transitional period and free movement ends straight away and the government would need its immigration policy in place. That means that workers moving across EU borders would be governed by the laws of each specific country rather than by EU law.

But EU nationals already working here can apply to remain here if they have been here for five years by the end of 2020 (settled status). Those under five years may apply for pre-settled status until they reach settled status.

Employment protection laws

After Brexit, whether the EU’s employment protection laws remain will be a matter for parliament.

We know which laws will definitely be staying, because of European Union (Withdrawal) Act 2018. These include:

  • Transfer of Undertakings (Protection of Employment) Regulations
  • Working time regulations
  • General Data Protection Regulation
  • And other laws with direct effects

But there are many areas, which may be reformed such as:

  • Discrimination compensation (which is currently uncapped)
  • The terms and conditions after a TUPE transfer
  • Holiday accrual and pay
  • The agency workers regulations

However, future EU trade deals may depend on employment protection.

If you are interested in hiring an HR professional to help you take care of employment law, or are an HR professional looking for your next role, get in touch and we can help.