Andrew Tobey
Posted on 10 Jul 2018

The rights of EU Nationals and the employment law landscape post-Brexit

Through the glass a little less darkly?

Over the last six months the haze of uncertainty surrounding the future residency rights of EU Nationals working in the UK has been a real issue – for workers and employers alike.

Whatever your views on Brexit and its potential impact, a substantial number of key industry sectors depend on vast armies of EU migrant labour – from hospitality, agriculture, and the NHS through to construction.

Reports from a number of my clients have been dominated by the uncertainty over future residency rights for their EU workers. This situation is not only causing existing EU staff to turn around and head back across the Channel, but also (and equally damaging) discouraging others from coming to the UK to work.  Why choose potential insecurity in the post-Brexit UK labour market when you can opt for secure residency in one of the remaining 27 member states?

Some much needed clarity has now arrived in the form of a declaration from the European Commission published on March 8th this year.  This “Technical Note” (the EU's term, not mine!) sets out the consensus reached to date on the EU and UK position on the rights of EU nationals working in the UK during the Transition Period and beyond. In summary:

  • All EU nationals and their families who will have been living lawfully in the UK as at December 31st 2020 (the end of the Transition Period) for 5 years or more will be able to apply for permanent residence by seeking what is known as “settled status”.  That means freedom to live and work in the UK, with full access to UK public services and relevant benefits, and to go on to apply for full British Citizenship.
  • Those who have arrived in the UK during the Transition Period (March 30th 2019 – December 31st 2020) will be able to stay on the same terms, but will need to register with the Authorities if they choose to remain for longer than three months. They can then apply to stay for the required five-year period, after which they will be able to seek “settled status”.
  • Close family members (i.e. spouses, civil and unmarried partners and dependents) will be able to join EU citizens in the UK after December 31st 2020, as long as that family relationship existed on December 31st 2020.

This declaration should give EU workers who wish to stay in the UK post-Brexit a degree of certainty – even those arriving up to the last minute on December 31st 2020.

The devil, as always, will be in the detail of the application process for “settled status”. On the face of it, this should be relatively straightforward – we shall see!

An economic undertow has also been pulling EU workers away from the UK and back towards the embrace of the remaining member states.

As a direct consequence of Brexit, Sterling has fallen sharply against the Euro, taking much of the shine off a UK wage packet.  For many EU workers, their home market or, at least, the wider EU economy, is a considerably more attractive prospect than before.

Although the latest joint declaration from the UK and the European Commission should bring some comfort to large numbers of EU nurses, barristas, builders, crop pickers and their employers, the overall labour supply outlook for these sectors remains a cause for concern.

Away from the bureaucracy of residency rights, how different will the employment law landscape look post-December 2020?

The Great Repeal Bill, or European Union (Withdrawal) Bill, designed to preserve in aspic all current EU legislation with effect from the Brexit date, is currently a judicial whale marooned on the sands of Parliament – assailed on all sides by factions seeking to hack away parts of its unwieldy bulk.

Once what remains of this legislative whale eventually floats free as the Bill is passed into Statute, to which aspects of EU-derived employment law will the Government’s legal scalpel be applied first? 

My money is on the following being substantially amended or scrapped (at least by a Tory Government) – the unloved Agency Workers Regulations, restrictive parts of the Working Time Regulations, the right to accrue holiday whilst off sick and enhanced holiday pay entitlements. Most other areas such as TUPE and all basic discrimination and family leave rights will remain. It's worth recalling that our first discrimination and equal pay laws originated in the early 1970s (from the UK Parliament, not the European Commission), so no change there.

Whether we like it or not, the European Court of Justice will continue to influence our Court decisions in interpreting the EU-derived legislation incorporated into UK law by virtue of the Great Repeal Act.

Yet, “nothing is agreed until everything is agreed”. Uncertainty continues to reign - watch this space.

For further information please contact Andrew Tobey, Head of the Employment Law team at Michelmores on andrew.tobey@michelmores.com or +44 (0)1392 687533.