HM Insights

What does the approval of the UK’s EU Withdrawal Agreement mean for employment law?

On Sunday, 25 November 2018, Donald Tusk, the President of the European Council, broke the news on Twitter that the UK's Withdrawal Agreement from the European Union had been approved by EU leaders.

The 27 leaders gave their backing to the Withdrawal Agreement after less than an hour’s discussion in which Spain withdrew last-minute concerns over Gibraltar. Consequently, if the UK Parliament approves the Withdrawal Agreement (and at the time of writing that’s a big 'if'), the Withdrawal Agreement will become a legally binding document setting out the terms of the UK’s exit from the EU.

This document will cover the UK’s £39 billion “divorce bill”, the Northern Ireland “backstop”, and, importantly for UK employment law, citizens’ rights.

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The Withdrawal Agreement's proposed legal landscape after Brexit on 29 March 2019

Under the UK’s Withdrawal Agreement, EU citizens already working in the UK will keep all their workers’ rights based on EU law. This means they will maintain the following rights:

  • the right not to be discriminated against on ground of nationality as regards employment, remuneration and other conditions of work and employment;
  • the right to take up and pursue an activity in accordance with the rules applicable to UK citizens;
  • the right to employment assistance under the same conditions as UK citizens;
  • the right to equal treatment in respect of conditions of employment and work;
  • the right to social and tax advantages and collective rights; and
  • the right for their children to access education.

The rights of frontier workers and frontier self-employed persons will also be protected under the Withdrawal Agreement. In addition if a person covered by the Withdrawal Agreement has their professional qualifications recognised within the UK then that worker will be able to continue to rely on that recognition decision for the purpose of carrying out the professional activities linked to the use of those professional qualifications.

What does this mean for employers?

The Withdrawal Agreement provides that EU citizens residing in the UK at the end of the transition period will be able to stay in the UK under essentially the same substantive conditions required by EU free movement law. Therefore, EU workers already in the UK will continue to have residency rights if they continue to work, become self-employed, or become a self-sufficient person (i.e. that person has sufficient financial resources and sickness insurance to not require assistance from the UK’s welfare system).

However, employers must make sure that any employees from the EU make an application to the UK authorities for a new UK residence status. Only once an EU citizen has accumulated five years of lawful residence in the UK will that person be able to apply for their residence status in the UK to be upgraded to a permanent residence status. This upgrade to permanent residence status would provide those employees with more rights and better protection.

Comment

The UK’s Withdrawal Agreement gives greater clarity to the legal landscape once the UK officially leaves the EU on 29 March 2019.

However the Prime Minister now has the difficult job of persuading MPs in the UK Parliament to back it. Ahead of a parliamentary vote on whether to accept the Withdrawal Agreement, set to take place in the second week of December, Theresa May is travelling the UK in order to rally support for the deal.

Should MPs reject the deal then there would be three possible outcomes: leaving the EU with no deal, attempting to renegotiate the Withdrawal Agreement, or a general election. Therefore, a lot could change in the next two weeks.

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Should your business require advice on dealing with the changing legal landscapes, then please get in touch and we can advise on the most appropriate form of action to take.