Dear member,

 

The EU and the UK government have agreed a Brexit Withdrawal Agreement, but major obstacles remain to UK parliamentary ratification. It is impossible to predict how events will play out over the coming weeks and months.

 

This uncertainty makes it very difficult for businesses to plan for the range of Brexit scenarios. To help you understand the potential implications for employment rights, we have produced a short guide which answers some of the key questions. These are set out below and are available online.

 

If you have further queries on employment-related Brexit issues contact Nichola Harkin, Employment Law Solicitor, at nichola.harkin@ibec.ie. For any other Brexit-related queries contact Arnold Dillon, Head of Strategic Campaigns, at arnold.dillon@ibec.ie. We have a wide range of experts and are here to help.

 

Best wishes,

 

Maeve McElwee

Ibec Director of Employer Relations

 

 

Brexit and employment rights: Key questions answered
January 2019

 

  1. What is the current status of negotiations?

A draft agreement on the UK’s departure from the EU, along with a political declaration on the future EU-UK relationship, was endorsed by the EU27 on 25 November 2018, but has yet to be ratified by the UK. The UK Parliament is scheduled to vote on the draft agreement in the week of 14 January 2019.  The below guidance is subject to the caveat that these documents have yet to be fully ratified.

  1. What are the key dates in the Brexit process?
  • 21-22 March 2019 – The last European Council with UK participation
  • 29 March 2019 – The date on which the UK is scheduled to withdraw from the EU
  1. Can Brexit be delayed or cancelled?

Yes, an extension to the Brexit process is possible, but would require the unanimous support of all the remaining EU Member States. The European Parliament elections in May complicate matters, as the UK would be required to field candidates if they had not yet left the EU. The UK can also cancel Brexit by withdrawing its Article 50 request (i.e. the request to leave the EU) and maintain its EU membership on its current terms.

  1. Will there be a transition period?

As part of the withdrawal agreement, a ‘status quo’ transition period up to 31 December 2020 has been agreed to facilitate an orderly withdrawal of the UK from the EU. The draft agreement provides for a single extension of the transition period, potentially until the end of 2022. Any decision to extend the transition period must be taken before 1 July 2020. Save for certain exceptions, EU law will generally be applicable to and in the UK during the transition period.

  1. How will the withdrawal agreement affect the processing of personal of data?

EU law relating to the processing of personal data will apply in the UK in respect of any processing of personal data of individuals entitled to the protection of EU law, where the data (a) was processed under EU law in the UK before the end of the transition period or (b) is processed in the UK after the end of the transition period on the basis of the draft agreement. This is unless an adequacy decision (as has been made for third countries such as Canada, New Zealand and Switzerland in the past) is made by the EU Commission with respect to the protection of personal data in the UK.

  1. Will the Court of Justice of the EU continue to have jurisdiction in respect of the UK during the transition period?

The Court of Justice of the EU (CJEU) will continue to have jurisdiction in any proceedings brought by or against the UK before the end of the transition period. The EU Commission may bring certain matters which arise prior to the end of the transition period to the CJEU within four years after the end of the transition period. This means that decisions of the CJEU in relation to matters such as working time, equal treatment and atypical workers’ rights may continue to apply to UK contracts of employment until December 2020 at a minimum.

  1. What do we know about the future post-Brexit EU-UK relationship?

The political declaration on the future EU-UK relationship is not legally binding and lacks clarity in many areas, but it includes the following provisions:

  • The EU and UK will aim to develop an economic partnership which will encompass a free trade area as well as wider sectoral cooperation where it is in the mutual interest of both parties.
  • The EU and UK will aim to provide for, through their domestic laws, visa-free travel for short-term visits. (The UK and EU are, however, likely to reintroduce visa requirements for long-term stays. Irish citizens should, however, benefit from the Common Travel Area. See more below.)
  • The EU and UK will aim to agree arrangements which should allow for the temporary entry and stay of individuals for business purposes in defined areas. (For the avoidance of doubt, if the draft agreement is ratified by the UK, the possibility of restrictions on entry and stay for business purposes will only arise after 31 December 2020 at the earliest.)
  • The EU and UK will consider conditions for entry and stay for purposes such as research, study and training. (As above, if the draft agreement is ratified by the UK, restrictions on entry and stay in this context will only arise after 31 December 2020.)
  • The EU Commission and the UK will begin work on establishing a framework to continue personal data flows as soon as possible after Brexit, endeavouring to adopt adequacy decisions by the end of 2020.
  1. What about the UK-Ireland Common Travel Area, will it continue?

Yes. Under the terms of the Withdrawal Agreement, the Irish-UK Common Travel Area will continue post-Brexit. Irish citizens will, therefore, continue to enjoy all associated rights and benefits they currently enjoy in the UK into the future, and vice versa. Irish citizens will therefore be treated differently in the UK than other EU citizens post-Brexit.

 

The Common Travel Area arrangement confers the following rights on UK and Irish citizens in the respective jurisdictions:

  • Right of freedom of movement and residence
  • Access to employment
  • Access to health care
  • Access to education
  • Access to social benefits
  • Right to vote in certain elections
  1. What are the likely implications for free movement for non-Irish EU citizens in the UK and for UK citizens in the rest of the EU in the event that the draft agreement is ratified?

EU citizens in the UK, and UK nationals in the EU, who have resided legally in their host State for a continuous period of five years or more will retain their right to permanently reside and work after Brexit. Periods of legal residence before and during the transition period are included in the calculation of the qualifying period. Once acquired, the right of permanent residence will only be lost through absence from the host State for over five consecutive years.

 

Other EU citizens in the UK, and UK nationals in the EU who do not fulfil the five-year criterion will also retain their rights of residence and their right to work after Brexit where they reside in the host State before the end of the transition period and continue to do so thereafter and such residence is in accordance with EU law on free movement.

 

The draft agreement also contains certain protections for family members of EU citizens in the UK and UK nationals in the EU.

  1. How will free movement be affected after any transition period?

While Irish and UK citizens will continue to benefit from the Common Travel Area post-Brexit, general free movement provisions will end after any transition period. The rights of non-Irish EU citizens in the UK are likely to be curtailed, and similarly the rights of UK citizens in the EU26 (i.e. the EU excluding Ireland) will be also. Future entitlements are not yet agreed, but the political declaration on the future relationship says the EU and UK will aim to provide for, through their domestic laws, visa-free travel for short-term visits.

Visas will likely be needed for long-term stays, with possible exemptions for business purposes, research, study and training, although this has yet to be agreed. For the avoidance of doubt, if the draft agreement is ratified by the UK, the possibility of restrictions on entry and stay for business purposes will only arise after 31 December 2020 at the earliest.

  1. What are the likely implications for individuals who live in the UK and work in the EU or individuals who live in the EU and work in the UK, in the event that the draft agreement is ratified by the UK?

The draft agreement sets out certain protections for “frontier workers”. Frontier workers are defined as EU citizens or UK nationals who pursue an economic activity in a State in which they do not reside.

Employed frontier workers may continue to enter and exit the State of work and will retain the rights they previously enjoyed, even where they do not move their residence to the State of work, on the condition that they arrive in their host State before the end of the transition period and comply with existing EU requirements on free movement.

 

The draft agreement provides that frontier workers will also retain the following rights:

  • Right not to be discriminated against on the grounds of nationality as regards employment, remuneration and other conditions of work and employment
  • Right to equal treatment in respect of terms and conditions of employment, in particular remuneration, dismissal, reinstatement and re-employment
  • Right to social and tax advantages (unspecified)
  • Collective rights (which are not defined in the draft agreement)
  1. What are the likely implications for Irish citizens who live in Northern Ireland and work in the Republic of Ireland?

Without prejudice to the general provisions regarding frontier workers above, employees in Northern Ireland who are Irish citizens should continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. This should ensure that Irish citizens living in the North can continue to work in the Republic of Ireland without obstruction.

 

As Irish citizens, they will be able to enforce these rights through the Irish courts and statutory tribunals and, if necessary, the CJEU.

 

For the sake clarity, this means that Irish citizens living and working in Northern Ireland have three bases of protection: (1) their rights as EU citizens (2) their rights as part of the Common Travel Area and (3) their rights as frontier workers.

  1. What are the likely implications for UK citizens who live in Northern Ireland and work in the Republic of Ireland?

As it is currently envisaged that the Common Travel Area will be maintained in its current form, UK citizens residing in Northern Ireland should equally be able to continue to enjoy the rights and benefits they currently enjoy post-Brexit and specifically, to continue to work in the Republic of Ireland without obstruction.

 

Where such UK citizens commence working in the Republic of Ireland before the end of the transition period and comply with existing EU requirements on free movement, they may also benefit from the rights afforded to frontier workers.

  1. What are the likely implications for other non-Irish citizens who live in Northern Ireland and work in the Republic of Ireland?

Non-Irish EU citizens will continue to enjoy rights as EU citizens and frontier workers where they reside in Northern Ireland. Specifically, they may continue to work in the Republic of Ireland without obstruction.

 

Non-EU citizens are unlikely to be significantly impacted by Brexit in that they will continue to be subject to UK rules regarding residency where they live in Northern Ireland and Irish rules regarding work permits where they work in the Republic of Ireland.

  1. What are the implications for the posting or relocation of Irish and non-Irish EU workers to the UK post-Brexit?

Once the UK leaves the EU, and given the continuation of the UK-Ireland Common Travel Area, Irish businesses are likely to find that Irish and non-Irish EU employees will be subject to different requirement in the case of a posting or a relocation to the UK for business purposes. While Irish citizens would benefit from the provisions of the Common Travel Area and face no new restrictions, non-Irish EU citizens would be subject to possible new UK immigration controls, which have yet to be determined. Similarly, a UK worker employed in Ireland would not enjoy the same rights of free movement (eg. for a posting or relocation) into the rest of the EU as those enjoyed by Irish and non-Irish EU colleagues. The EU and UK have however suggested in the political declaration on the future relationship that special provisions may be put in place business travel and stays.

  1. What are the implications for the Common Travel Area in the event of a ‘no deal’ Brexit?

The Common Travel Area arrangement predates EEC accession and the Common Travel Area has political support in the UK, Ireland and wider EU. Ibec does not, therefore, envisage an issue with the continuation of the Irish-UK Common Travel Area even in the case of ‘no deal’.

 

The Government of Ireland’s Contingency Action Plan in respect of a ‘no deal’ Brexit published on 19 December 2018 states that both the Government of Ireland and UK Government have committed to maintaining the Common Travel Area “in all circumstances” and work to achieve its protection is at an advanced stage.

 

The UK has produced a white paper on ‘Future Skills-based Immigration’ which confirms that the Common Travel Area and associated rights between the UK and Ireland will be unaffected by the UK’s exit from the EU even with ‘no deal’.

 

It must, however, be noted that no international agreement or treaty is unassailable, and the possibility of the Common Travel Area agreement being revisited at some point in the future cannot be ruled out. However, this is a remote possibility at this point in time.

  1. What are the likely wider implications for non-Irish EU and UK citizens in the event of a ‘no deal’ Brexit?

The UK government has said it will adopt a similar approach to EU citizens living in the UK as those set out in the withdrawal agreement, even in the case of a ‘no deal’ outcome. EU citizens and their family members resident in the UK by 29 March 2019 will continue to be able to work, study, and access benefits and services in the UK on the same basis after Brexit. There will of course be no transition period, as this is part of the withdrawal agreement.

 

In the case of a ‘no deal’, UK nationals in EU Member States would not benefit from EU free movement provisions. It would be a matter for individual countries to decide how to treat UK citizens in a ‘no deal’ scenario, although the European Commission has urged a “generous approach” and has called on governments to grant temporary residence permits to UK nationals so individuals have time to make applications to secure their long-term status.

  1. Will visas be required for travel between the UK and the EU post-Brexit in the case of ‘no deal’?

If required agreements can be reached, visas are unlikely to be needed for short-term visits. There may also be special arrangements for research, study and exchanges. Regardless of whether the draft agreement is ratified or a ‘no deal’ Brexit occurs, the UK and EU are, however, likely to reintroduce visa requirements for long-term stays. Irish citizens should, however, benefit from the Common Travel Area (as set out above).

  1. What are the likely implications for UK employees working under UK employment contracts, but with an employer resident elsewhere in the EU?

Where an employee is engaged in the UK on a UK contract, UK law will apply, regardless of the fact that the employer may be an Irish registered company. This is irrespective of Brexit occurring, or whether the draft agreement is ratified or a ‘no deal’ Brexit occurs.

 

There is some commentary on potential changes which may occur in UK employment law, post-Brexit. As many of the UK’s employment laws originate from EU directives, following Brexit, it will be possible for the UK to repeal some or all of this legislation, should it wish to do so. However, much of this legislation (e.g. equality / family friendly legislation) bolsters workers’ rights and would, likely, prove politically controversial to change.

 

The draft agreement also contains a provision regarding the non-regression of labour and social standards. This provides that the EU and the UK will ensure that labour and social protection standards are not reduced below the level provided by the common standards applicable within the EU and the UK at the end of the transition period. It remains to be seen how this clause may impact amendments made to UK employment law post-Brexit.

 

Furthermore, where employees have certain contractual entitlements, they may still be able to rely on them, on the basis of simple contract law, regardless of changes in UK employment law.

 

Further developments on the issue of Brexit arise daily. Members are encouraged to maintain contact with their Ibec advisors.

 

For further information, contact Nichola Harkin, Employment Law Solicitor, at nichola.harkin@ibec.ie or +353 1 605 1635.