Brexit – what happens next?

Last updated 21st May 2020

As of exit day (31 January 2020) the UK is officially no longer an EU Member State. But the UK has now entered an implementation period (IP) ending on 31 December 2020 during which it is treated as a Member State for many purposes. The UK continues to be governed by EU law and be subject to the jurisdiction of the Court of Justice of the European Union until the end of the 11-month IP. During this time, the UK will not be able to reduce worker’s rights.

But even beyond 31 December 2020, the impact of Brexit on your employment rights is likely to be 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 if, and when, we leave 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 will likely be the impact that Brexit will have on right of freedom of movement of EEA nationals following Brexit. In the December 2019 Queen’s Speech, it was announced that protection for EU workers’ rights will be included in a forthcoming Employment Bill. The Employment Bill would need to be passed by the end of the implementation period in order to effectively protect workers’ rights derived from EU law. Until we know more about the details of this bill, its impact is hard to predict.

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 following Brexit. 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 government has confirmed it would keep these types of rights in place following the UK’s exit from the European Union.

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 rightsThe 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 leaveThe right to paternity leave has been introduced by UK law. It is unlikely this right would be removed or changed following Brexit.
Shared parental leaveThe right to paternity leave has been introduced by UK law. It is unlikely this right would be removed or changed following Brexit.
Parental leaveParents 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 workingThis 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 workersThis right was introduced by UK law. It is unlikely this right would be removed or changed following Brexit.
Right to emergency time off for dependantsThis 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 originThese 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 holidayThis 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 hoursThis has been controversial from the start. The cap on the maximum weekly working hours under the Working Time Regulations may be removed following Brexit.

2. If the legal protections don’t change, will Brexit have no impact on my employment rights?

Even though it is expected that the UK’s employment laws won’t change, it is expected that UK courts would no longer rely upon European case law decisions when deciding how the UK’s legislation should be followed. EU judges have, in broad terms, been seen to have taken a protective approach to workers’ rights. The UK courts would not have to follow that EU led interpretation in future.

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 to continue to work and live in the UK following Brexit. More information can be found on the 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 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 involves the UK and an EU state (or states) by the end of the implementation period, your rights are protected. For example, if you’re an EU national living in the UK by the end of 2020, 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.

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