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The Brexit Vote & Employment Law and Health and Safety

The Brexit Vote & Employment Law and Health and Safety

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Despite many false dawns, the reality of what the UK might look like in a post – Brexit world is becoming clear. Parliament is due to vote on Theresa May’s deal to leave the European Union on January 15th 2019.

It is important all organisations prepare for any eventuality and take steps to ensure they are clear on what to do in any post – Brexit landscape.

Businesses are cautious when it comes to the reality of a post – Brexit world. According to the Financial Times, business investment has barely grown since the referendum which demonstrates that businesses are unclear of what the environment will look like and so will not be willing to risk investment.

Ellis Whittam, Employment Law, HR and Health and Safety experts discuss what you will have to be aware of, whether the ayes or the noes lobbies win.

Ayes to the right wins

This means that the deal presented to Members of Parliaments (MPs) by Theresa May has been approved.

How will this impact Employment Law?

The impact of Brexit on employment law will present challenges, particularly for organisations with a migrant EU workforce.

The draft withdrawal agreement does contain a number of provisions about this issue so following a positive vote for Theresa May:

  • An “implementation period” from the date of Brexit (29 March 2019) to 31 December 2020 will come into effect during which free movement will continue between the UK and the EU, with EU citizens and their family members who are legally residing in the UK continuing to be able to do so.
  • EU citizens who have resided in the UK lawfully for five years by 31 December 2020 (the end of the implementation period) will be able to apply to stay indefinitely under the new “EU Exit Settlement Scheme” (previously referred to as “settled status”). This scheme is open now and has been somewhat controversial as it requires payment of a fee to apply which runs contrary to the Government’s previous promises that nothing would change for EU migrants already settled in the UK.
  • Those EU citizens in the UK for fewer than five years by 31 December 2020 will be entitled to “temporary status” until they have been in the UK for the necessary five years to get EU Exit settled status. They will be able to continue working, studying or being self-sufficient until they have reached the five-year point.
  • The draft withdrawal agreement covers only EU migrants and not people from other EEA countries such as Norway, Switzerland, Iceland and Lichtenstein. Yet, it is expected that the scheme will be extended to them in due course.

In terms of other areas of employment law although a significant proportion of UK employment law is derived from the EU, there appears to be no appetite for immediate change.

Most EU derived employment law is so embedded in UK working practices and in some cases gold plated.

There may well be tweaks with some areas that are viewed as particularly tedious for businesses (the Agency Worker Regulations for example) or the raft of recent EU case law about the accrual & payment of holidays whilst off sick.

However, these are likely to be a little way off at the moment.

What about Health and Safety?

The United Kingdom has practised high standards of health and safety implementation for over 40 years.

Health and safety law in the UK is implemented through the Health & Safety at Work etc. Act 1974, (HASAWA).  This pre-dates our entry into the European Union.  The Act however has allowed successive governments to implement regulations either as a result of EU directives or in response to recognised risks in the workplace.

The Act has been fundamental to the UK obtaining its position as a world leader in health and safety and is not at all connected to European law. Therefore, it would be remiss to expect that Brexit will lead to a mass reduction in the health and safety obligations of companies and individuals in the UK as these are largely underpinned by the Act.

Noes to the left wins

This means that Parliament has decided not to vote in favour of the deal Theresa May has put together with the European Union.

This presents several options to Theresa May and her Government, however, for this purpose, let us presume that this will result in a no-deal scenario.

A no-deal scenario is where the United Kingdom leaves the European Union without an agreement of how the relationship will work.

No Deal and Employment Law

If the UK leaves the EU without a withdrawal agreement then Theresa May has given assurances that those migrants who are settled prior to 29 March 2019 could continue to live and work in the UK.

The Government would look to implement something broadly similar to the above scheme in any event.

After all, what is the alternative?

However, there will no doubt be some significant changes, especially for anyone who is looking to work in the UK for the first time after Brexit.

How will this affect Employment Law and HR

The simple fact is that without a withdrawal agreement, no-one is sure what the future position on immigration will be.

At least the withdrawal agreement buys the government some breathing space to work out what that may look like. It could be that they implement a points based immigration system similar to the one that already exists for non-EU migrants.

However, that is likely to be unpopular with businesses given that it is quite a complex, unwieldy system in any event and can be very costly.

Indeed, the guidance on sponsoring a non-EU national runs to over 10,000 pages which is far from perfect or in line with the Brexit ideal of cutting back on unnecessary red tape.

Another alternative would be a simplified work permit system for EU nationals, however, there is no indication as to what that might involve.

In its “Workplace rights if there’s no Brexit deal” document, the government sets out that there will be no change to employees’ rights and protections. Some minor amendments will need to be made to the language of the legislation to reflect our departure from the EU, but they will not modify policy.

Is Health & Safety impacted?

There appears to be little evidence that a no deal Brexit will impact health and safety and how it is implemented in the United Kingdom.

As HASAWA was introduced before the UK joined the EU, a no deal Brexit would not affect this.

Furthermore, for many industries, including manufacturing and food production, the UK’s place as a leader in the health and safety sphere, means that any derogation away from that could impact investment.

As Nick Wilson, Director of Health and Safety services at Ellis Whittam explains, “Ultimately, health and safety goes hand in hand with successful and sustainable business and so business leaders are likely to want to stay as aligned as possible with the high standards of the EU.”

Irrespective of the vote, it is important that you seek advice from the experts. Contact Ellis Wittam now to discuss how we can support your Employment Law, HR and Health and Safety.

Ben Delaney, Partnerships Manager, 01244 687625, bendelaney@elliswhittam.com

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