As the clock struck 11 pm on December 31, 2020, the one-year Brexit transition period came to an end – but what implications does that have for employers and employees? The first and perhaps most obvious consideration, is the impact it will have on the ‘right to work’ status of EU employees

. From an employee perspective, EU employees need to apply for a settled or pre-settled, status in order to continue working legally in the UK, if they have not already done so – application can be made until June 30, 2021.

Employers must ensure that their employees have a right to work in the UK, but until now would not have had to consider such checks for those employees from the EU. Moving forward, these will clearly be required, but given the timeframes for applications, employers do not need to begin making enquiries of their employees immediately – and the latest Home Office guidance suggests that employers not do so.

This is particularly so where employers have a duty not to discriminate against employees based on their nationality; in circumstances where employees are not obliged to demonstrate their settled status as yet, asking them about it might be perceived negatively.

Having said that, employers will, of course, need to make enquiries at some point before June 30, 2021, given that if they have not done so, their employees may be working illegally thereafter, and employers will need to investigate and if appropriate, dismiss, to avoid the financial penalties associated with illegal working.

More widely, many may be unaware that a lot of the employment legislation currently in force emanated from European legislation which all Member States were required to adopt. Many questions have been raised about whether changes now might be made, given that the UK is no longer obliged to maintain such legislation. Whilst there are a whole host of protections that have been touted as possible contenders for amendment, the two which may well see significant change are as follows:

The Working Time Regulations 1998 – These Regulations cover weekly working time (capped at 48 hours per week unless an employee has agreed to opt-out), minimum rest periods and the right to 28 days paid holiday. The biggest criticism of them has always been the complexity involved in their application, and a Private Members Bill has been suggested which might revoke the Regulations and allow new, simpler Regulations on working time and holiday.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 – these Regulations (TUPE for short) protect employees when there is a change in business owner or transfer of a contract; employees are protected and maintain their terms and conditions when they transfer over to the new employer. However, the protection that TUPE affords is often criticized as being particularly onerous, particularly the prohibition on ‘harmonizing’ the terms and conditions of transferred employees with existing employees. These provisions are ripe for amendment.

Beyond that, we will likely see minor tweaks to a whole host of protections. Whilst it is very unlikely that the anti-discrimination legislation will be altered, we may well see the introduction of caps on the amount of compensation payable (as already exists for claims of unfair dismissal). Changes to the legislation that covers agency workers have also been mentioned, which are seen as being opaque and difficult to navigate.

Whilst much was said about changing the face of employment law, with the Government promising to protect and enhance workers rights, the Covid-19 pandemic has impacted on their list of priorities, and thus we may not see any real changes to employment law for some time. Until then, it is business as usual.

Safia Tharoo
Barrister, 40 Bedford Row, London