Brexit – what happens next?
As of exit day (31 January 2020) the UK was officially no longer an EU Member State. Under the EU-withdrawal agreement, the UK entered an implementation period (IP) ending on 31 December 2020 during which it was treated as a Member State for many purposes. During this time, the UK continued to be governed by EU law and was subject to the jurisdiction of the Court of Justice of the European Union. In addition to this, the UK was not be able to reduce worker’s rights.
The UK and EU entered into the Trade and Cooperation Agreement (the “Agreement”) on 24 December 2020 and the Agreement provides that the UK and EU must not weaken or reduce the level of employment rights affecting trade or investment in place as at 31 December 2020. The UK and the EU have also made a commitment to enhance their labour and social levels of protection.
Therefore, despite the IP ending on 31 December 2020 , the impact of Brexit on your employment rights is limited, at least in the short to medium term. Most family friendly measures have been introduced by UK (rather than European) law and are expected to remain in place despite leaving the European Union. It is unlikely that employers or the government will want to cut workers’ existing rights. They are rights which UK based workers would now expect and, in many cases, it would be controversial to take these rights away.
The largest area of change is likely the impact that Brexit has had on right of freedom of movement of EEA nationals following Brexit.
1. What is the possible impact of Brexit on family friendly employment rights?
In broad terms, many of the rights available to working parents are expected to remain in place. Many of these rights have been in place for a long time and are generally seen to be an important part of the UK’s workplace.
The provisions of the Agreement restrict the UK’s ability to make major changes to employment law when this affects trade or investment. Therefore, some smaller changes to rules may be considered if they do not significantly impact trade. In the longer-term, it is possible that these rights could be reviewed or changed by future governments.
| Type of right | Is this likely to change following Brexit? |
| Pregnancy and maternity protections and associated rights | The UK’s maternity and pregnancy related rights go further than is required by EU law. These rights have been in place for a long time. It is unlikely these rights would be removed or changed following Brexit. |
| Paternity leave | The right to paternity leave has been introduced by UK law. It is unlikely this right would be removed or changed following Brexit. |
| Shared parental leave | The right to shared parental leave has been introduced by UK law. It is unlikely this right would be removed or changed following Brexit. |
| Parental leave | Parents can currently take 18 weeks’ unpaid leave for each child up to (in the UK) their 18th birthday. This an EU-based right but introduced by UK law. It is possible this could be scaled back following Brexit but is unlikely to be a priority for change. |
| The right to request flexible working | This right was introduced by UK law. It is unlikely this right would be removed or changed following Brexit. |
| The right to equal treatment for part time workers | This right was introduced by UK law. It is unlikely this right would be removed or changed following Brexit. |
| Right to emergency time off for dependants | This right was introduced by UK law. It is unlikely this right would be removed or changed following Brexit. |
| Protection from discrimination and harassment based on sex, age, disability, sexual orientation, religion or belief and race or ethnic origin | These rights have been introduced by UK law. It is unlikely these rights would be removed following Brexit. It could be that a future government considers introducing a cap on potential awards for discrimination claims. |
| The right to statutory paid holiday | This is well established and it is unlikely to be removed. However, there are aspects of this right that are unpopular with some businesses and which may change following Brexit (e.g. the fact that you keep accruing holiday while on sick leave) |
| Maximum weekly working hours | This has been controversial from the start. The cap on the maximum weekly working hours under the Working Time Regulations may be removed following Brexit. However, the government has recently stated that it will not seek to remove the cap. |
2. Will Brexit have any other impact on my employment rights?
Even though it is expected that the UK’s employment laws won’t change, under the EU-withdrawal agreement the UK courts no longer have to rely upon European case law decisions when deciding how the UK’s legislation should be followed. However, the government did not extend this provision of the EU-withdrawal agreement to the Employment Tribunal and Employment Appeal Tribunal, who will continue to be bound by European case law decisions. Therefore, unless there is a decision of the Court of Appeal or above, employment matters such as holiday pay which are subject to European case law decisions will not change.
3. How else might Brexit affect my ability to live and work in the UK?
The UK’s government has reached an agreement with the European Union in relation to EU citizens who live and work in the UK. Under the EU settlement scheme, EU citizens living in the UK after it leaves the European Union, along with their families, can stay and continue with the same access to work, study, benefits and public services as is currently the case.
In order to remain, most citizens from the EU, Norway, Iceland, Liechtenstein and Switzerland will need to take steps to ensure they take steps to apply for ‘pre-settled’ or ‘settled ‘status by 30 June 2021 to continue to work and live in the UK following Brexit. More information can be found on the Gov.uk website.
Any EU citizens moving to the UK after the UK leaves the European Union will have to apply for temporary leave to remain in order to stay for longer than 3 months. If an EU citizen has been in the UK for less than 3 months and has temporary leave to remain they will be eligible to claim benefits.
4. What about benefits? Will I still be entitled to these following Brexit?
Brexit is likely to affect benefit entitlement but for the time being, you can qualify as now. However, if you are a EU national and meet the conditions, you should apply for settled or pre-settled status now (see more on the Gov.uk website). Settled status will help you to meet residence conditions which some benefits have, including Universal Credit. If you’re an EU national whose situation involved the UK and an EU state (or states) prior to 31 December 2020 i.e. the end of the IP, your rights are protected. For example, if you’re an EU national who was living in the UK by the end of the IP, national insurance you’ve paid in EU states and the UK can count towards retirement pension.
Benefits which depend on your work history such as any contribution-based benefit (including ‘new style’ employment and support allowance and ‘new style’ jobseeker’s allowance’), maternity allowance, statutory maternity pay, maternity allowance, statutory paternity pay and statutory sick pay are not affected by a person’s immigration status and so you would still be entitled to these if you meet the usual qualifying conditions. In some cases, you may also be able to use EU co-ordination rules, for example to add contributions you paid in other EU states to contributions in the UK in order to qualify for benefit. These principles should continue to apply if you are an EU national and you started living in the UK before the end of 2020.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.