Brexit: 6 months in—where are we now?

Seyfarth Shaw LLP

The UK is approaching 6 months since it officially left the EU on 31 December 2020, yet the post-Brexit landscape remains far from settled. Below we have outlined some key impending changes, as well as continuities, that employers should be aware of at this 6-month junction.

Confirmation of continuity for UK-EU data transfers: Hot off the press is the announcement that on 28 June, the European Commission issued two Adequacy Decisions under the GDPR, which follow the draft Decision that was issued on 19 February 2021. This move is eagerly awaited given the expiry (at the end of June 2021) of the temporary “bridging mechanism” between the UK and EU, which was intended to ensure consistency in data flows immediately post-Brexit. These Decisions formally recognize the UK as a country that offers adequate personal data protection and enable the free movement of personal data between the EU and UK until 2025, with renewal being contingent on the UK remaining aligned with the EU GDPR’s standard of protections. Without such recognition, UK and EU data transfers would have become more complex and onerous, needing to be subject to a prescribed data transfer mechanism, such as Standard Contractual Clauses (for our recent update on these, see here). 

30 June will mark some changes:

  • Right to live in the UK (“settled status”): EU citizens and their family members who were residing in the UK before 31 December 2020 must have applied for settled status (i.e. the right to remain indefinitely in the UK) under the EU Settlement Scheme by 30 June 2021. Calls for a general extension to the deadline have been rejected. Any EU citizens who have begun residing in the UK after 31 December 2020 must instead follow the UK’s new points based immigration system.
  • Right to work checks: Until 30 June 2021, employers of EU citizens can rely on EEA nationality documents (i.e. passport, ID cards) to confirm a prospective worker’s right to work in the UK. After this date, employers will require proof of immigration status (i.e. under the EU Settlement Scheme or the UK’s new immigration system) in order to evidence the person’s permanent right to work in the UK. Employers should keep an eye out for the government’s guidance on right to work checks for EEA nationals, which is expected to be released soon; please also see here .

New Rules for Work Related Travel Between the UK and Europe: Frustratingly, there is no uniform approach to the country rules for work related travel between the UK and EU. Careful review is needed to determine whether travel can be covered under business visitor rules, and whether a work permit or so called posted worker declaration may be required. If it is, this can trigger the need to file applications ahead of time, which can delay travel or cause issues on arrival. Even permitted business travel requires close monitoring, as 90 day stay limits in the EU and 180 day stay limits in the UK apply. For employees on business travel (when COVID-19 related restrictions permit), employers may want to prepare a checklist of the key restrictions and key steps applied to work related travel between the UK and specific European countries, instead of assuming a “one size fits all” approach.

European legal principles remain relevant: UK courts are no longer bound to follow new EU laws or European Court of Justice (ECJ) decisions. However, EU law up to 31 December 2020 has been incorporated into UK law and is “retained EU law.” And EU law was still used to interpret UK law up until the end of the transition period, until the end of 2020. This has had  surprising results, as shown by the following recent significant cases.

  • TUPE (Acquired Rights Directive): UK law is following the (difficult) decision of the ECJ that employees can now transfer to multiple transferees as part of an outsourcing or business transfer (the ECJ Govaerts decision). Previously, UK law held that employees can only transfer to a single new employer.
  • Equal pay: It is now easier to bring an equal pay claim, by comparing against a higher paid employee at a different site or business, provided that the same employer is responsible for setting pay. This is based on EU equal treatment rules because the UK litigation started pre-Brexit. This principle now applies to all UK equal pay claims. Claimants no longer need to show that they are either working "in the same employment" or are in the "same service" as a better paid comparator where their terms and conditions are attributable to a "single source." (K and others v Tesco Stores Ltd.)
  • Protection for beliefs: A new case has set a high bar, that beliefs would have to be at the level of “Nazism or totalitarianism” or to “seek to destroy others’ rights” for the individual to be expressing it to be outside the protection of rights under the European Convention of Human Rights (ECHR). The UK still belongs to the ECHR despite leaving the EU. This was applied to mean that ‘gender-critical’ beliefs, including a belief that a person’s sex at birth cannot be changed, is protected by law. (Forstater v CGD Europe.)

As time goes on, we expect to see more divergence between UK and European law. But for now, the picture is complicated. Businesses will continue to deal with the aftermath of Brexit for some time to come.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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