Brexit, the word coined to describe the departure of the United Kingdom from the European Union, has proven to be most incendiary amongst the ordinary British people—those who supported it and those against. After years of exhaustive back-and-forth negotiations between the UK and Europe, the final date of 31 December 2020 as the end of the transitional period was decided and the process of unravelling the various agreements began.

As the new year 2021 was ushered in so was the new arrangement that came into effect on the 1 January 2021, with all the changes to the relationship between the UK and Europe in terms of trade, employment and resident status.

What are the new employment rules?

• People no longer have freedom of movement between the UK and Europe, and UK citizens now require a visa if they stay longer than 90 days in a 180-day period in any of the countries belonging to the EU. People from the EU will have to go through the UK immigration system. This is seen as the most immediate challenge to UK employers who are dependent on a workforce from outside the UK. Amongst the many affected, cross-border workers will highly impacted in terms of work permits, visas, etc.
• A points-based immigration system has been implemented in the UK which treats citizens from the EU the same as non-EU countries.
• A UK employer now requires permission to employ any workers from the EU. Every EU passport has different requirements that has to be met.
• A UK employer requires a sponsor licence to recruit workers from outside the UK. Employers must check that any potential recruits from outside the UK meet all the criteria before applying to be a sponsor. Visas will only be granted if the minimum requirements are met.

Skilled employees have the following requirements that have to be met:

• Their UK employer must be a Home Office licenced sponsor
• They must be able to speak English to a mandatory level
• The skill level of the job must be RQF3 or above which translates to an equivalent of A levels.
• The salary offered for the job must be at a minimum of £25 600 or higher. Exceptions to this particular rule apply in some cases, like if the job offer is on the occupation shortage list or the applicant has higher education like a PhD relevant to the job or a PhD in a STEM (science, technology, engineering and mathematics) subject, but this qualification must also be relevant to the job post.
• Different regulations apply to certain health-related and education jobs, and for entry-level workers for some careers.
• Some of the requirements are compulsory whilst others are flexible but the minimum number of points is 70 to be able to apply to work in the UK (it includes sponsor, skills, level of English, salary, degree).
• Some exceptions to the points system are: Global Talent Route, Graduate Route, etc.

Employment law implications

Many features of employment law in the UK are independent of EU law, like minimum wage, holiday and parental leave, and unfair dismissal. Whilst other legal aspects have become entrenched in UK law from the EU like redundancy requirements and discrimination law.

Some of the changes expected post-Brexit are:

• Holiday renumeration, as established by the European Court of Justice (CJEU), stated that employees must accumulate holiday during sick leave and that vacation pay must also include overtime and commission, in addition to basic salary. How the UK deals with the large numbers of cases going through the courts on this matter is no longer clear because previously it was assumed that the rulings of the CJEU would still prevail.
• Discrimination laws (Equality Act 2010) in relation to disability, sex and race could possibly see no or some small amendments because these laws have been in existence for a long time in the UK, but they originate largely from CJEU regulations.  
• European Works Councils (EWC), which is established when an employer has 1000 workers or more across the EU, will no longer be set up in the UK. If the main administration of a company's EWC is in the UK, it will have to move to another country. These same rules apply to any European public limited companies that are registered in the UK.

In addition, the 48-hour week, which is currently the maximum working limit in the EU, could be scrapped by the UK government under reported plans to rip up key working protections following Brexit.

There will no longer be any reciprocal EWC arrangements between the EU and UK after Brexit.

• The Transfer of Undertakings (TUPE) law could be changed in the UK which potentially means that if a business is transferring to the UK, the employer would not be obligated by law to take on existing employees. This could result in reassigning or making the affected employees redundant.
• Professional qualification recognition will also be impacted. Your degree obtained in the UK will not necessarily be recognised by EU countries as was the case prior to Brexit.
• Transferring of employee data from the EU to the UK will require new safeguards.
• The Agency Workers Regulations 2010 which stated that temporary agency workers after 12 weeks of employment must be offered the same employment terms and conditions as permanent workers created many challenges for employers in the UK. This may be revisited by policy makers in the near future.

A future employment bill?

There have been a number of suggestions made for a new Employment Bill in the UK in an effort to increase the protection of workers' rights. These are not very well-defined at the moment but will be promulgated once they are clarified. At this point some of the proposals include:

1. Parents may be able to take longer leave after the birth of a child.
2. Unpaid carers to be entitled to one week's leave.
3. To protect workers against pregnancy and maternity discrimination.
4. Gratuities to go directly to the worker in full rather than only a percentage of takings.
5. The establishment of a single organisation that will increase and enforce the protection of workers' rights, support business compliance and help vulnerable workers by increasing awareness of their rights and how to exercise them.

The new employment regulations post-Brexit in the UK are numerous. Ensure that you do all the relevant research before you embark on any employment changes.

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