UK employment rights in a no-deal Brexit

Introduction

What might a no-deal Brexit mean for UK employment rights? What could employers do now to prepare? And what might the future hold in a no-deal scenario?

Prime Minister Boris Johnson is clear that he would be prepared to leave the European Union without a deal if necessary and the current legislation commits the United Kingdom to leaving the European Union at 11:00pm on 31 October 2019. Thus, it seems like a good time to revisit the employment law implications of a no-deal Brexit.

What can employers do now to prepare for a no-deal scenario?

European works councils

Employers must have pre-designated their new representative agent if their European works council is currently located in the United Kingdom. If the European works council is (or will become) located in another EU country, employers must decide what to do about their existing UK representatives after Brexit (for further details please see “European Commission confirms its views on European works councils and a no-deal Brexit“). Employers that are currently negotiating a European works council agreement or have a European works council operating under the default subsidiary requirements should consider relocating their arrangements now if they have not done so already.

Data protection

If a no-deal Brexit approaches, employers may need to take steps to protect data flows from the United Kingdom to the European Union.

Impact on business

There are certain legal requirements that employers should contemplate if they are considering restructuring or relocating after Brexit. The key point is that employers may need to consult on the business case for closure before any decision to close a business is taken. Employees should also be offered the opportunity to move with the business if it is relocating, subject to them meeting any relevant language, immigration or qualification requirements.

Following a no-deal Brexit – what would it mean?

Employment law

In the event of a no-deal Brexit, the European Union (Withdrawal) Act 2018 will convert all EU employment law as it stands before Brexit into UK law. The Employment Rights (Amendment) (EU Exit) Regulations 2019 will make some small technical changes and introduce new provisions intended to preserve UK-located European works councils (although it has been argued that the European works council arrangements do not actually work) but, apart from the changes made by those regulations, employment law will remain the same in the immediate term (for further details please see “Will Brexit frustrate your European works council?“).

Business travel to EEA and Switzerland

The rules for British citizens travelling to Ireland will not change and they will be allowed to undertake any activity without restriction. After Brexit, British citizens travelling to the other EEA countries or Switzerland will be exempt from visa requirements for up to 90 days in a 180-day period. This is for visits only, including for attending business meetings. However, British citizens will be unable to undertake paid work, so employees must understand the scope of the proposed activities on each trip and obtain any required work permissions if these go beyond the activities allowed for visitors. It will also be important to calculate the time spent in the Schengen area on a rolling basis to ensure that the 90-day maximum stay is not exceeded. British citizens will also need to have a passport which is valid for at least six months from the time that they enter the European Union. Note that some British passports are issued for more than 10 years in total but only the first 10 years of validity can be counted towards this six-month requirement. The government has produced a calculator that people can use to check if they have enough time left on their passport to cover a visit.

Business travel to United Kingdom

If the British government proceeds with its original plan to bring in new primary legislation to end the free movement of EEA and Swiss nationals to the United Kingdom, there is likely to be a short period after a no-deal Brexit in which free movement will still apply. However, recent press reports suggest that the government may seek to end free movement using secondary legislation. It is likely this will ultimately prove to be unfeasible. However, if the government is successful in using secondary legislation, it could mean that free movement will end on exit day. After this, Irish nationals will continue to undertake business travel to the United Kingdom without restriction due to the common travel area arrangements. The arrangements for EEA or Swiss citizens arriving in the United Kingdom between the date that free movement ends and 31 December 2020 are currently unknown. The government previously announced that they would be able to enter visa-free for up to three months and would be allowed to undertake any activities without restriction; however, this plan has now been scrapped and its replacement is yet to be announced.

What would a no-deal future look like?

In the longer term, there are lots of potential employment implications for which employers should prepare.

Possible divergence from ECJ case law

Pre-Brexit decisions of the European Court of Justice (ECJ) will remain binding on most UK tribunals and courts, but need not be followed by the Supreme Court. New ECJ decisions will not be binding on any court or tribunal, although they could be considered if relevant. Overall, the UK courts are likely to continue to respect most ECJ rulings, as long as UK and EU legislation remain the same.

No new directives

The United Kingdom would not be required to adopt the Transparent and Predictable Working Conditions Directive, the Work Life Balance Directive, the Whistleblower Directive or any future EU directives. However, the United Kingdom:

  • has already committed to implementing some aspects of the Transparent and Predictable Working Conditions Directive;
  • is one of the few EU countries to already have whistleblower protection; and
  • already provides some of the rights established under the new Work Life Balance Directive.

Thus, while differences in employment law could open relatively soon, they will be quite small.

Longer-term changes to employment law

Larger gaps will open if the UK government dismantles EU-derived employment laws after Brexit. Theresa May was always emphatic that her government would look to enhance workers’ rights after Brexit, not reduce them. However, other prime ministers may take a different stance.

Boris Johnson is reported to be keen to renounce the Working Time Directive. He gave evidence to a select committee that it has proved too expensive to implement in the United Kingdom and it would be surprising, given the strength of his previous statements, if his government made no changes to EU-derived working time laws. However, it is hard to imagine any modern UK government ending all rights to paid holiday. Instead, the United Kingdom can reasonably expect the scrapping of EU rules on working time limits and record-keeping requirements, but the retention of some rights to paid holiday (possibly paid at the rate of basic pay only). Similarly, some rights provided by the Agency Workers Directive could be abolished (eg, the right to pay parity after 12 weeks), but limited agency worker rights are likely to remain.

In the longer term, if a Conservative government remains in power, the country might also expect to see collective redundancy consultation being abolished or made less onerous and the restrictions on changing terms after a Transfer of Undertakings (Protection of Employment) (TUPE) being lifted (although TUPE is unlikely to be scrapped). Previous governments have explored whether discrimination awards could be capped (eg, at one or two years’ pay) but this was problematic under EU law. Capping discrimination awards is unlikely in the short term, not least because of the #metoo movement, but it could come back on the table later.

Ultimately, the United Kingdom faces the same challenges as any other modern economy: how to regulate the increasing volume of platform and contingent working and respond to the impact of demographic and technological change on the workplace. The United Kingdom’s withdrawal from the European Union will mean that the United Kingdom will need to find its own regulatory solutions to these challenges.

Discrimination rights

UK law prohibits workplace discrimination on grounds of nationality and national origin. In the (hopefully unlikely) event of any EU citizen experiencing abuse or harassment in the workplace, employers must be ready to respond under their anti-harassment policies. Employers may want to check that they already cover nationality as well as race.

Interestingly, UK equality legislation goes further than the EU minimum requirements in explicitly preventing nationality discrimination in the workplace. This is one of a number of instances where UK law actually provides more rights than the EU minimum and illustrates that, although the United Kingdom may dismantle some EU-derived employment rights following a no-deal Brexit, there are still likely to be areas of employment law where it goes further than the European Union.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide

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Employment Law the facts…

Employment law regulates the relationship between employers and their employees. It covers every aspect of employment from the hiring process through to the exit process, ensuring every individual is treated fairly.

Employment law is potentially full of pitfalls. Getting it right means keeping up with developments and really thinking about your policies before carefully implementing them. Getting it wrong can be extremely expensive.

There are seven areas of employment law likely to affect you. Here are the main things to be aware of in each area.

1) Recruitment

If you recruit the right people, you’ll have fewer problems to deal with later. We all make instant judgments about people and may even decide about a candidate’s suitability before they’ve said a word. Train interviewers to be aware of, and avoid, unconscious bias: ask standardised questions to give each candidate an equal chance. You must also check they have the right to work in the UK. Use probationary periods effectively and have regular reviews, if there are early signs the employee is likely to be unsuitable you can usually dismiss without risk.

2) Hours, leave and pay

You must adhere to the Working Time Regulations regarding working hours, rest breaks and paid annual leave. Ensure employees are paid at least the minimum wage, with everyone receiving a wage slip, and you must operate PAYE for tax and National Insurance contributions.

3) Employee rights

All employees should receive a statement setting out the main terms and conditions of their employment. Plus, certain ‘rights’ will be implied. There must be a relationship of ‘trust and confidence’ between employer and employees; a reasonable amount of privacy, the right to belong (or not) to a trade union, and the entitlement to ‘blow the whistle’ on employer wrongdoing; employers must provide a secure, safe and healthy working environment, and most employees are entitled to keep their jobs if the business changes hands. Everyone has the right to ask for (but not necessarily get) flexible working after being with an employer for 26 weeks.

4) Discrimination

Underpinned by the Equality Act 2010, it’s crucial that employers get this right as they are legally responsible for discrimination and harassment by their staff. Discrimination can be direct (e.g. not employing somebody because they are gay) or indirect (applying a policy equally to everyone that disadvantages one group, e.g. irregular shifts for women who may be carers). Harassment is often dismissed as ‘just banter’, but it’s not the intention that’s the issue, it’s how it was perceived. To prevent discrimination or harassment, employers need a workplace policy, should train their staff about what is and isn’t acceptable, and take prompt action against anyone who oversteps the mark. .

5) Disciplinary and grievance

You need to have disciplinary and grievance procedures that follow the ACAS Code of Practice in place. If you’re going to dismiss someone, you’ll need a good reason and it must not be unlawful or unfair (genuine redundancy can be grounds for dismissal). You don’t necessarily have to go through the rigmarole of a series of verbal and written warnings – you can go straight to a final written warning or dismissal in serious cases.

6) Sickness

Tackling illness in the workplace can be tricky – particularly if the employee has a disability and is protected under discrimination legislation. We’ve all come across an employee who seems to have a sickness bug on Monday mornings (short, intermittent illness) or those who are off for over a month (long-term sickness). All employees should be asked to attend a back-to- work interview after any period of illness: the key thing here is, where necessary, to offer adjustments that ease people gently back into work. Not all illnesses incapacitate a person so much that they need to stay in bed, or remain at home – this is particularly true of conditions such as stress or depression.

7) Working parents

When an employee is expecting a baby or is a new parent, they have extra rights at work. An employee and their partner could be entitled to: paid time off for ante-natal care, maternity leave and pay, paternity leave and pay, shared parental leave and pay, adoption leave and pay, and unpaid time off to care for a child. These rights apply to same-sex relationships as well as opposite-sex relationships. Employees can also have a few days’ ‘unexpected emergency leave’ for domestic emergencies

Original piece written by Irwin Mitchel

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The exemption from disclosure for confidential employment references….

The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA), which implemented many of its provisions, are now over a year old.  The aim of the GDPR was to increase the protection of individuals’ personal data.  Employees are better informed than ever of their data protection rights, with employers receiving an increased number of subject access requests from their employees.

Interesting, however, under the DPA, individuals are not entitled access to a confidential employment reference written about them; neither from the author of the reference i.e. the ex-employer, nor from the recipient of the reference i.e. the new or prospective employer.  In order for ex-employers to refuse disclosure (should they wish to do so), the reference should clearly state that it is confidential, intended for the attention of the recipient only and that the author does not give permission for it to be disclosed to the subject.

Under the previous Data Protection Act 1998, the exemption relating to confidential references applied only where the employee made the request to the employer that provided the reference. The employee could therefore access the reference by making a request to the employer that received the reference instead. This provision (which was considered an anomaly) was removed by the DPA.

The author of a reference owes a duty of care to both the subject of the reference and the reference recipient.  Caselaw has established that where a reference is given, the reference must in substance be true, accurate and fair, and must not give a misleading impression.  Most job offers are conditional upon receipt of satisfactory employment references.  Clearly, an unfavourable reference can harm an individual’s future employment prospects and result in the prospective employer withdrawing an offer or dismissing an employee during their probationary period. This means that the balance in the employer’s favour may be disproportionate in cases where a reference is open to challenge due to being factually incorrect, or generally giving a misleading impression. Of course, where the individual is not permitted access to a reference, they are unable to challenge its contents.  Where the individual has evidence that the ex-employer had provided a negligent reference, they could bring a claim in the county court and request that the court orders disclosure of the reference.

This statutory exemption could mean that the UK is in breach of Article 8 of the European Convention of Human Rights in respect of an individual’s qualified right to a private life, as it is questionable whether the exemption which permits the reference to be withheld is proportionate to the individual’s right to fairness and transparency regarding their personal data. It is possible that at some point, the UK courts will receive a challenge to the legislation on this basis.  However, as the law currently stands, employers can continue to rely on this exemption, which means that any request for access to personal data contained in an employment reference which is clearly stated to be confidential, is exempt from disclosure.

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Recruitment Still Strong despite Brexit…

Despite the uncertainty around Brexit, companies are still recruiting. It’s very much a candidates market at the moment and demand for workers is driving a sharp increase in starting salaries. It’s been getting harder and harder for firms to find good staff and with UK immigration policy likely to tighten, this trend isn’t going to get any easier.

Concerns about a no deal Brexit are putting a handbrake on the supply of candidates as the value of job security and stability shoot up people’s personal agendas. However, candidates who are prepared to take a chance and job hop can often bag a pay rise as a result.

Slower rise in staff appointments

Permanent placements increased at softer rates in November. Though strong, the upturn in permanent staff appointments was the second-weakest since October 2017.

Vacancy growth edges down to 25-month low

Though elevated by historical standards, the overall rate of vacancy growth edged down to the least marked for just over two years in November. This was driven by a slightly softer increase in permanent job openings…

Candidate availability continues to tighten…

The overall availability of staff continued to decline sharply in November. This was despite the rate of reduction easing to the weakest since March, helped by softer falls in the supply of both permanent and temporary candidates.

…leading to further upward pressure on pay

Tight labour market conditions and greater competition for workers led to further marked rises in pay for both permanent and temporary staff. Notably, temporary wages increased at the quickest rate since July 2007. Permanent starting salaries meanwhile rose at one of the sharpest rates seen in the past three-and-a-half years.

Permanent placement growth edges down to four-month low

November survey data signaled a twenty-eighth successive monthly increase in the number of people placed into permanent job roles. The pace of expansion remained sharp, despite softening to the second-weakest since October 2017 (after July 2018). Growth was generally linked by respondents to robust demand for staff. However, there were also reports that uncertainty linked to Brexit and candidate shortages had limited the overall upturn in placements.

Steep increases in permanent staff appointments were seen across three of the four monitored English regions, as the North of England registered only a modest rate of expansion.

 

 

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Market Commentary Nov 18 – Demand still high

  • Steeper increases in permanent placements

  • Starting salary inflation close to September’s recent high

  • Steeper decline in candidate supply

Commentary

 “firms continue to hire new staff at near record rates. With the jobs market so heated, businesses across the country, of all types, are struggling to find work ready staff. Some clients tell us they are seeing the worst period of staff availability for many a year. A four-decade low in unemployment means good candidates are at a premium. Consequently, we’re seeing wages pushed upwards and now may be a good time to move to secure  a pay rise!

Key points 

  • Staff appointments increase at quicker pace…
  • The number of people placed into permanent jobs rose at a sharp and accelerated rate in October.

…as demand for staff remains robust

  • Growth of demand for staff remained historically sharp at the start of the fourth quarter.
  • Starting salary inflation continues to rise…

…driven by sustained fall in candidate availability..

  • Overall candidate availability declined at the quickest pace for nine months in October.

 

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 Early Autumn market update: Starting salaries rise at fastest rate since April 2015, as candidate availability drops further..

  • Starting salaries rise sharply amid steep reduction in candidate supply
  • Permanent placements expand at slightly weaker pace
  • Vacancy growth softens to near two-year low, but remains strong

Companies generally are struggling to find the people they need to drive growth and opportunity. 

Permanent placements growth softens…

Permanent staff recruitment continued to rise at the end of the third quarter, albeit at a softer pace. Nonetheless, growth remained sharp…

…as candidate availability drops further

We have found there is continued difficulties regarding the availability of staff for the vacancies we have. Although easing since August, the rate of deterioration in permanent staff availability remained sharp.

Starting salary inflation reaches 41-month peak…

Starting salaries for people placed into permanent jobs increased at the quickest pace since April 2015 during September.

…as demand for staff remains strong

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August news….Permanent placements rise at slower pace

Key market points:

  • Permanent placement growth softens to nine-month low…
  • Staff vacancies expand at quickest rate since last November
  • Decline in candidate availability eases, but remains historically sharp

Commentary

The rise in interest rates for only the second time in a decade may leave some people feeling the pinch. But a new job is one way people can ease the burden on their finances. With our data showing starting salaries continuing to rise, the latest official government figures suggest that we are finally seeing the effects of a tighter labour market feed through to pay.

Softer rise in permanent staff appointments…

Permanent placements continued to rise sharply in July, though the rate of expansion was the softest recorded since last October.

…as supply of candidates continues to drop markedly

A candidate shortages weighed on permanent recruitment. The supply of permanent candidates fell sharply in July, despite rates of decline easing to the weakest in three months.

Staff vacancies rise at quicker pace…

Demand for staff strengthened further in July, with overall job vacancies expanding at the quickest rate for eight months.

…maintaining upward pressure on pay

Low candidate availability and robust demand for staff led to a further steep increase in salaries awarded to permanent starters.

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June / July recruitment news….Candidate shortages remains sharp!

Candidate shortages contribute to slower rise in recruitment in June…

Key points from June:

  • Permanent placements continue to rise, but not as sharply as previous months
  • Candidate availability deteriorates at steeper pace
  • Robust demand for staff leads to further marked rises in pay

Commentary : It’s a great time for people looking to take the next step in their careers, as employers compete for new staff in a tight market. It’s a candidate’s market out there.

Across the majority of sectors, both temporary and permanent opportunities are growing, and a lack of candidates means it is no surprise to see starting pay also rising.

This high vacancy rate may be driven by good demand from companies not being matched by candidate willingness to move in the face of the current economic uncertainty.

Softer increase in recruitment…

Placements both continued to rise sharply in June, despite rates of expansion easing.

…as candidate availability falls at sharper rate

Lower candidate availability was cited as a factor hampering growth. Notably, permanent availability declined at sharper rates at the end of the second quarter.

Steeper increase in staff vacancies

Vacancies continued to rise sharply in June. Growth of demand for permanent staff edged up to a seven-month high, while short-term vacancies rose at a slower yet still strong rate.

Pay pressures remain historically marked

Salaries for permanent roles increased further in June, with the rate of inflation holding close to a three-year high…

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Further marked rise in recruitment

 Key points market indicators :

  • Steep increases in permanent placements
  • Severe staff shortages leads to quickest rise in starting salaries for three years
  • Staff vacancies expand at the quickest pace since last November

Despite growth in demand for staff this month, there has been another drop in staff availability. There has been a rise in client recruitment indicating that employers are feeling confident in making hiring decisions but a lack of candidates remains a major challenge

Because of the lack of candidate availability we are seeing employers paying higher salaries to attract the right people. This is only part of the solution, with employers also having to think about providing a more flexible working environment and progression opportunities. With skills needs and candidate expectations continuing to evolve, employers are having to radically re-imagine their hiring procedures.

Appointments continue to rise strongly…

Permanent appointments continued to rise at a robust pace, despite growth softening to a five-month low.

…as demand for staff strengthens

Growth of demand for staff strengthened to a six-month high in May, with sharp increases in permanent roles .

Sharp fall in candidate availability…

Overall, candidate availability declined at a sharper rate midway through the second quarter. Candidate numbers fell at the fastest rate for four months, while short-term staff availability deteriorated at the quickest pace since last November.

…leads to steepest increase in starting salaries for three years

Strong demand for staff and low candidate availability underpinned further increases in starting salaries and temp pay. Notably, salaries awarded to successfully placed permanent workers rose at the steepest rate for three years

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May news …Rise in Vacancies…Drop in candidate availability.

Key Points:

  • Continued rise in permanent placements;
  • Growth of demand for staff picks up for the first time in nine months;
  • Steeper decline in candidate availability triggers greater rises in pay.

Permanent placements…

There has been an increase in permanent placements but the rate of expansion in April was the softest witnessed in 2018. The growth of placements was underpinned by a further substantial rise in demand for staff and greater job vacancies.

Decline in candidate availability…

The rate of reduction in candidate availability for permanent roles has quickened to a three-month record. The steepest decline was in the South of England.

Growth of demand for staff…

Vacancies for permanent roles have increased, thereby indicating that there is a greater demand for staff. This demand was higher in the public, as compared to the private, sector.

Pay pressures…

There has been a further rise in starting salaries for candidates placed into permanent roles. This has been linked to candidate shortages and a robust demand for staff. The strongest rise was in the South of England.

 

Commentary 

Demand for staff is still on the rise in every other sector, but candidate availability keeps dropping. Employers are paying more to attract the right people into their vacancies. For individuals, now is a good time to look for a new job, as you are in a strong position to negotiate higher pay. For employers, the challenge is to stay ahead of the competition to maintain and enhance your workforce. This is about more than just pay, it is about providing progression opportunities and a positive workplace culture. As recruitment gets harder the only solution for employers is to get better at attracting and retaining the right skills and staff…

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