Brexit and workers’ rights

17th September 2019

Leaving the European Union with or without a deal affects workers’ rights. What are the key points to watch out for?

Back in March 2019 the government announced measures to protect and enhance workers’ rights following Brexit.

Leaving the EU with a deal

There are two key EU Directives that will take effect in the UK after Brexit:

1. The Work Life Balance Directive would introduce new rights for parents and carers, such as two months of paid leave for each parent up until the child is eight years old and also five days of leave for those caring for sick relatives.

2. The Transparent and Predictable Working Conditions Directive would set the terms of employment for workers by their first working day and would provide more stability if working in shifts.

The European Union (Withdrawal) Act 2018 brings EU law into UK law, subject to any amendments; ensuring rights covering working time, holiday, family leave, discrimination, etc. remain in place.

Workers from the EU in the UK will be able to continue working with the same rights up to 31 December 2020.

Irish citizens can continue to come to the UK for work without a permit.

The UK Parliament can decide in future whether it wishes to keep aligned with EU rules or not.

Frontier workers

Frontier workers are EU, EEA or Swiss citizens who regularly commute to the UK for work, but live elsewhere. They have working rights where status can be retained.

If Brexit happens with a deal these frontier workers will be able to continue working with the same rights up to 31 December 2020. Thereafter, they will still be able to continue doing so as long as they began employment or self-employment in the UK by 31 December 2020.

However, after this date such workers will need to apply for a frontier worker permit to prove their right to enter the UK for work. No details about this have yet been made available.

In the case of a no-deal Brexit, these workers can continue working in the UK with the same rights. Under the withdrawal agreement which has yet to be agreed by Parliament, freedom of movement would have continued for a two-year transition period. Without a deal, free movement will end when the UK leaves the EU on 31 October 2019, although this may change.

If free movement ends for frontier workers, they will still be able to continue working in the UK for up to 3 months at a time without needing a visa.

Where a person ceases to engage in frontier working and begins living in the UK before Brexit, they will need to apply to the EU Settlement Scheme or for European temporary leave to remain if the requirements for the EU Settlement Scheme are not met.

If there is a no-deal Brexit, further details about applying for frontier worker status from 1 January 2021 will be set out in due course.

Irish citizens do not need to do anything to remain living and working in the UK.

EU Settlement Scheme

EU citizens working in the UK can secure their rights and status to stay in the UK after Brexit. Successful applicants will get either settled or pre-settled status.

If the UK leaves the EU without a deal, then the deadline for applications is 31 December 2020. If the UK leaves with a deal, then the deadline for applications is 30 June 2021.

No-deal Brexit and sending workers to the EU

UK employers who have people working in the EU, the EEA or Switzerland will need to be aware of changes where there is a no-deal Brexit.

At the moment employers and workers only need to pay social security contributions (such as National Insurance contributions in the UK) in one country at a time. But without a deal such contributions may have to be made in both the UK and the country in which a worker is working.

If the employee is a UK or Irish national working in Ireland, their position will not change after the UK leaves the EU and no action need be taken.

Where an employee is currently working in the EU, the EEA or Switzerland and has a UK-issued A1/E101 form, they will continue to pay UK NICs for the duration of the time shown on the form.

However, if the end date on the form goes beyond the Brexit date, employers will need to contact the relevant EU / EEA or Swiss authority to confirm whether or not the employee needs to start paying social security contributions in that country from that date. The EU Commission’s website lists the relevant country’s authority.

A replacement for the A1/E101 form will be available for new applications after Brexit to ensure that the employee continues to pay NICs. The same form on the government’s website can be used to make an application after Brexit.

The UK government is attempting to ensure that in the event of a no-deal Brexit, individuals affected will only pay social security contributions in one country at a time.

More information about sending workers to the EU, the EEA or Switzerland in a no deal situation can be found on the government website.

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