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Employment Law - Brexit Update


Brexit is due to take place on the 29th March 2019 unless the Government decides to postpone this until July at the latest.  The text of a draft Withdrawal Agreement that was reached in November 2018 has been rejected by Parliament and therefore plans for a potential no deal Brexit need to be made. 

Existing rights of European Union workers will be converted into EU-derived domestic legislation after Brexit under the European Union (Withdrawal) Act 2018.  Under Section 6 of that Act, any questions about the meaning or effect of the law that has been derived from the EU have to be decided in accordance with existing judgments of the European Courts of Justice.  Courts or Tribunals can have regard to relevant European Courts of Justice decisions taken after Brexit but it appears there will not be a legal obligation to do this. 

The effect of this is that the majority of substantive worker rights will not change after Brexit.  Two draft statutory instruments have been published by the Government that will make technical changes to employment legislation in the event of a no deal Brexit.  The draft Employment Rights (Amendment) (EU Exit) Regulations 2018 remove or amend powers allowing the Government to make regulations to give effect to EU rights. 

It would appear that the only area where the regulations will make significant changes in the event of a no deal Brexit is in relation to European Works Councils.  The Transnational Information and Consultation of Employees Regulations 1999 would be amended in order that it would not be possible to set up European Works Councils after Brexit although any requests made to do so before Brexit could be completed. 

By the 2018 Regulations therefore all secondary legislation i.e. that made by regulations and not by an act of Parliament, that is derived from EU law will be converted into UK law.  Primary legislation, namely Acts of Parliament such as the Equality Act 2010, will remain in force unless and until repealed.  In theory, the Government could repeal all EU-derived employment law following Brexit however it is unlikely to take this step although it may repeal some aspects and/or modify some laws over time to make them less restricting to UK businesses.  Perhaps one set of regulations that is most likely to be repealed is that of the Agency Workers Regulations 2010 which have been variously described as complex and unpopular with businesses.  Furthermore, these regulations are not politically difficult to remove. 

As far as EU Nationals working in the UK are concerned following Brexit, they will not have the automatic right to work in the UK.  The Withdrawal Agreement provided for a transitional period for EU workers during which the status quo would generally be maintained.  However, since the Withdrawal Agreement has not been agreed, the Government has now produced details of an EU Settlement Scheme.  This commences on 30th March 2019 (the day after Brexit is due to take place) and the last day for applications under the Scheme is the 30th June 2021.

An EU National residing in the UK needs to complete an application for settled or pre-settled status.  Generally, the application involves proof of identity and proof of continuous residence.  If an EU National can show that they have been living in the United Kingdom for over a total of five years continuously (at least six months in any twelve months’ period) they will be able to apply for settlement status.  It was originally proposed that an application fee would be charged and a fee for someone of sixteen years or over was to be £65.00 and if the Applicant was under sixteen years of age it would be £32.50.  The Government has now announced that having listened to the concerns of EU citizens residing in the United Kingdom that the fee will now be scrapped.

If the EU National is successful in obtaining settlement status they will be entitled to stay in the United Kingdom for as long as they wish.  If they have fewer than five years’ continuous residence they can apply and obtain pre-settled status which means that they will be able to stay in the UK for a further five years from the obtaining of the pre-settled status but then if they wish to stay beyond that five years’ period, then they will need to apply again to obtain settlement status. 

The contents of this article are correct as of 22nd January 2019 and due to the dynamic process involved, if you are going to undertake a process that is going to be affected by the changes referred to in the details above, it is suggested that you contact Guy Salter at guy.salter@smesolicitors.co.uk to check the current situation.

Added: 30 Jan 2019 11:38


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