Where are we now?
The UK is no longer a member of the European Union and is currently in a transitional period in which the UK and EU must negotiate terms for the new relationship moving forward. This transition period ends 31 December 2020. If no agreement is negotiated then from 1 January 2021 the UK will leave without a deal.
Even though the UK has left the EU, it is still treated as a member state, including for the purpose of adhering to its obligations under EU law and the continued jurisdiction of the Court of Justice of the European Union.
In terms of the Covid-19, the pandemic has not resulted in any delays to the expiry of the transition period. It remains 31 December 2020.
Existing UK legislation
· A significant amount of UK employment law has their basis in EU legislation. This means that for our own UK domestic employment law, it currently must not fall below the standards which are set by the EU.
· From 1 January 2021, employment rights that are currently guaranteed by EU law will no longer be guaranteed. It will be for the UK to either amend or remove any of the existing employment rights moving forward. Although, the European Union Withdrawal Agreement Act 2020 no longer contains a provision that the UK will retain these rights, the current UK Government have committed to voluntarily ensure that they do.
Creating New Legislation
· From 1 January 2021, the UK will not be able to translate any new EU legislation into UK domestic law, instead, the UK will set its own employment legislation. Furthermore, any new employment case rulings arising from the European Court of Justice (ECJ) will no longer have a binding effect on UK law.
UK Employment Tribunal Decisions
· UK Employment Tribunals will not be able to refer any matter to the ECJ for its own interpretation on whether EU directives have been implemented.
· Tribunals will also not be bound by any principals laid down or decisions made by the European Court of Justice on or after 1 January 2021.
European Works Councils
· Currently, UK based employees can ask their employer to set up a European Works Council (EWC). An EWC is a forum in which an Employer providers information and consults with employees on issues affecting employees in 2 or more EEA countries. However, from 1 January 2021, employees will no longer be able to do so.
· If a request however is received up until 31 December 2020, then it will be allowed.
· If an employer becomes insolvent from 1 January 2020, the rights of UK and EU employees working in the UK will not change. For those UK employees working in an EU country for a UK employer, then in an insolvency situation, employees may still be protected by the national guarantee fund, established in the EU country in which they are working. However, each EU country may have different rights defined and so legal advice will be required at the time from the relevant European country.
The UK is committed to maintaining high standards regarding GDPR and are likely to incorporate it into UK law after Brexit.
UK businesses that receive personal data from contacts in the EEA or that have offices in the EEA will need to comply with both the UK and EU data protection regulations from 1 January 2021 and therefore will need to take additional steps to ensure that the data can continue to flow after 31 December 2020.
In light of the Government’s indications that it intends to incorporate current GDPR requirements into UK law then now would be a good opportunity to conduct a GDPR risk audit to identify if there are any areas of risk in regards to you currently manage data.
New Points Based Immigration System
What is it?
A consequence of Brexit is that the free movement of people within the EU to the UK will end and so, from 1 January 2021 changes will be made to how you recruit from outside of the UK. A new points-based immigration system will be introduced, which will treat EU and non-EU citizens equally in terms of work in the UK.
The applicant will be required to score at least 70 points through a process that awards points for a variety of differing characteristics, such as salary level, qualifications and if the role is in shortage.
The new system will be for EU nationals who arrive in the UK on or after 1 January 2021 and an Employer will be required to apply for a Sponsor Licence to recruit from outside the UK.
There are two different types of sponsor licences that can be applied for, so it is important to consider the organisation’s future recruitment needs. You need to assess whether you anticipate a decline in applications because of Brexit, or perhaps you have already seen a dip in the level of EU workers alongside a review of the type of job roles that you employ and whether there have been any challenges from recruiting within the UK in the past. You will also need to consider whether the job roles within your organisation are likely to meet the required skill level that has been defined by the Government as part of the scheme, as each occupation type will have its own defined points in which the applicant must earn in order to achieve the minimum 70 points required to work in the UK.
You can then determine whether it is going to be important for you to apply to become a sponsor. If you do, then it is recommended that you apply sooner rather than later. Applications can be made directly through the Government’s website which also has guidance on how to apply.
To transition to the new immigration system, Employers will be given six months to continue to accept passports and national identity cards of EU nationals as evidence of their right to work in the UK. Alternatively, EU nationals may opt to provide their evidence through the Government’s online right to work checking service. When using this method, the employee will need to provide you with a share code either directly themselves, or via the online service where you will then receive a notification email.
Immigration Skills Charge
The current immigration skills charge that is in place when recruiting non-EU foreign nationals will be extended on the 1 January to both EU and non-EU nationals. Employers will be required to pay £1,000 per skills worker for the first 12 months with an additional £500 charge for each subsequent six-month period. There will also be discounted rates for small businesses and charities.
The Xact team will give your business a free of charge health and safety assessment to ensure that you are legally compliant. Please contact the Xact Team to arrange your free consultation by clicking on the button.