Global menu

Our global pages

Close

Recent Brexit developments: implications for employment and immigration law

  • United Kingdom
  • Brexit
  • Employment law

16-07-2018

From the early days of her premiership, Theresa May has committed to protecting workers’ existing employment rights after Brexit, including those derived from EU law, and to taking back control over who comes to live in the UK.

The last few weeks saw the Royal Assent of the EU (Withdrawal) Act 2018 (“the Withdrawal Act”) and the publication of the Government’s White Paper flowing from its much heralded “Chequers Agreement”. The White Paper aims to build on those commitments by seeking a legally-binding agreement with the EU on the non-regression of UK employment law and an end to free movement of labour, while the Withdrawal Act provides for legal continuity immediately after Brexit.

Focus on employment law after Brexit

The term “non-regression” seeks to preserve the status quo (the White Paper talks about “maintaining” current high standards). It seems abundantly clear now that this Government has no plans to make any substantive changes to UK employment law in the short and medium term. However, it is currently much less clear whether non-regression includes keeping pace with changing EU standards by implementing new EU employment legislation after Brexit.

In the context of this non-regression commitment, could a future British government modify employment rights, for example, relaxing the TUPE rules on harmonising terms after a business transfer?

It appears that such a change would fall under a new set of institutional and governance arrangements proposed by the White Paper to manage our future relationship with the EU. These arrangements provide for changes to be consulted upon by a new Joint EU/UK Committee, such as agreeing whether or not any changes were a “regression”, with the possibility of binding arbitration or financial compensation in the event of disagreements. Accordingly, future employer-friendly amendments to existing employment law could be time-consuming and difficult - assuming of course that the White Paper’s vision is agreed.

The Paper also reiterates that, after Brexit, the Court of Justice of the European Union (CJEU) will “no longer have the power to make laws for the UK and the principles of direct effect and of the supremacy of EU law will no longer apply in the UK”.

The Withdrawal Act sets this out in legislative form. It will capture EU-derived employment law at the time the country exits the EU and continue to apply it in the future. It will (by repealing the European Communities Act 1972) sever the current automatic pipeline which brings in new EU employment legislation and will provide a new approach for British courts and tribunals to apply past and future CJEU case law. Unfortunately, the latter provisions are complicated and, at times, unclear in their scope and may result in future litigation. However, it should be noted that the Withdrawal Act could be amended before Brexit - for example, if its provisions do not accord with the terms of any agreement secured with the EU on our future relationship.

In summary, while further clarity has been provided by the White Paper and the Withdrawal Act in relation to preserving the status quo, no firm conclusions as to the longer-term future of UK employment law can yet be drawn.

Finally, the White Paper makes a surprising and unexpected employment statement – that “the UK and the EU should also commit to uphold their obligations deriving from their International Labour Organisation commitments.” There are four core ILO principles which member states must respect:

  1. freedom of association and the effective recognition of the right to collective bargaining
  2. the elimination of forced or compulsory labour (including modern slavery)
  3. the abolition of child labour
  4. the elimination of discrimination.

It is not clear why specific references to those principles have been made in this context – it may reflect the Prime Minister’s own interest in the issue of modern slavery which she led onto the statute book as Home Secretary, or it could indicate a willingness to adhere to ILO standards in the future, but not maintain continued compliance with EU employment legislation. It also begs the interesting question as to whether the EU and UK are upholding these obligations currently. For example, it is notable that the UK’s industrial action legislation has been criticised by the ILO. At present, the ILO can criticise but not effectively sanction its member states. Therefore, if the UK was to make ILO compliance legally binding in any agreement with the EU, this may have inadvertent consequences, such as placing more onerous obligations on the UK in this field than is currently the case.

Focus on immigration law after Brexit

In terms of immigration arrangements, in the White Paper the Government reminds us of its stated aim to end free movement and take back control over who comes to live in the UK. In its place it is seeking a new framework that allows UK and EU nationals to continue travelling between the UK and the EU for business, work and education purposes.

Background

An agreement on citizens’ rights which allows EU citizens to continue living in the UK and for UK citizens to continue living in the EU is already in place until the end of the implementation period, which will end in December 2020.

The White Paper contains the Governments proposals for mobility arrangements between the UK and the EU following the end of the implementation period when free movement of people ends.

Future proposals for mobility

The Government emphasises in its White Paper that any future mobility arrangements will be in line with its objectives of controlling and reducing net migration and ending free movement. The Paper anticipates the forthcoming report from the Migration Advisory Committee this Autumn and that it will provide more information on the immigration structure post December 2020 “in due course”. It also gives a flavour of its proposals, as follows:

  • visa-free arrangements for UK citizens to visit the EU and EU citizens to visit the UK for short-term business reasons similar to the visitor rules for non EU citizens currently in operation
  • reciprocal arrangements allowing UK and EU-based companies to train staff, move them between offices and plants and to deploy expertise where needed, again based on existing intra company arrangements for non-EU countries
  • the UK will discuss how to facilitate temporary mobility for scientists and researchers, self-employed professionals and employees providing services
  • visa-free travel for UK and EU citizens for tourism
  • continuation of cultural exchanges such as Erasmus for young people and students
  • a youth mobility scheme between the UK and the EU similar to the youth mobility schemes with other countries such as Australia and Canada
  • reciprocal arrangements to streamline border arrangements and administrative procedures for EU and UK citizens travelling for tourism and business. This would be similar to the Registered Traveller Scheme currently in places for a number of countries such as the US
  • reciprocal arrangements on future rules regarding social security coordination which will be important for UK nationals wanting to live, work or retire in the UK

These proposals will not affect the Common Travel Area arrangements between the UK and Ireland, and the Crown Dependencies.

Overall the Government’s proposals are not surprising but offer some comfort in the face of the post December 2020 unknown. The specific reference to intra company mobility may go some way to allaying the fears of businesses with a UK base that mobility of employees and cross border working will be possible come January 2021. However, we must wait until further in the year for more detail.

For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings