The impact of Brexit on key employment legislation
The impact of a conservative victory and the UK’s imminent exit from the EU could have major implications for health and social care industry. Care organisations are diverse employers. The care industry in the UK employs around 1.35 million people, and 7% of those are from EU countries. While only 1% of UK nationals employed in care have university degrees, 15% of EU care workers are degree qualified.
- Freedom of movement
If the UK leaves the EU with a deal, it has been agreed that:
- There will be an implementation from the date of Brexit to 31 December 2020. During this period, free movement will continue between the UK and EU, with EU citizens and their family members who are legally resident in the UK in accordance with Union law continuing to be able to do so;
- Any EU citizens, who have resided in the UK for five years by the exit date, will be able to apply for “settled status” to say indefinitely under the EU Settlement Scheme. This scheme outlines the process for EU nationals to be able to continue living and working in the UK;
- EU citizens in the UK with fewer than five years by the exit date will be entitled to apply for “pre-settled status” until they acquire the necessary five years’ continuous residence to obtain settled status. This means that EU care workers working in the UK will be able to continue working until they have reached the five year point. Children of those EU nationals, and other family members who are living with, or join, EU citizens in the UK by the exit date, will be able to apply under the EU Settlement Scheme for pre-settled status or, if they qualify, settled status. Close family members will also be able to join EU citizens in the UK after the exit date, if their relationship existed on the exit date;
- The deadline for submitting applications for pre-settled and settled status under the scheme shall be 30 June 2021.
In a no deal Brexit, there will be a transitional period until the UK’s new skills based future immigration system comes into force on 1 January 2021. However, the Government has agreed to protect the rights of EU nationals and their family members in the UK by the date of Brexit, even if the UK leaves the EU without a deal. The EU Settlement Scheme would continue to run but only for EU nationals and their family members’ resident in the UK by the exit day, not 31 December 2020, as there would be no agreed implementation period. During the transition period until 1 January 2021, free movement will continue but, in order to stay beyond the exit date EU nationals and their family members will need to apply for and obtain European Temporary Leave to Remain (Euro TLR) or, for leave to remain under the UK’s new skills based future immigration system. Otherwise they will need to leave the UK.
Once granted, Euro TLR will allow EU nationals to stay in the UK for up to 36 months (none extendable), with broadly the same conditions as now. This time in the UK with Euro TLR will count towards indefinite leave to remain in the UK if an individual obtains further leave to remain in the UK in a category which leads to settlement.
- Discrimination law
The UK had protection against sex, race and disability discrimination pre-EU, but these rights have been extended by the EU, and additional protections added, including discrimination on the basis of age, religion / belief and sexual orientation. However, the Equality Act 2010 implements the UK’s laws against discrimination and is primary legislation, so would remain in force even if the legislation that incorporates EU law is repealed.
Although the Government could repeal the EqA 2010 after exiting the EU, as discrimination laws have become accepted in workplaces and society as a whole, wholesale changes seem unlikely. Some commentators have suggested that there may be a desire to introduce a cap on discrimination compensation (which is not currently allowed under EU law), similar to that for unfair dismissal.
- Holiday and working time
The right to statutory paid holiday is unlikely to be a target, given that the UK exceeds the EU minimum (providing 5.6 weeks’ holiday as opposed to the EU minimum four weeks) and, it would be deeply unpopular with workers and trade unions if this right was removed. However, perhaps more likely are changes to the calculation of holiday pay, and also the treatment of accrual of annual leave which has remained a source of frustration for employers. Following ECJ decisions, care workers have the right to continue to accrue annual leave whilst on long term sick leave and, holiday pay must be calculated on all aspects of remuneration, including commission and in certain circumstances overtime, not just basic pay.
Following Brexit, it is likely that Government will revisit this issue and seek to simplify the calculation of holiday pay which could result in a simplistic adoption of a basic pay reference point which would impact many workers in the care industry significantly. An alternative but, fairer calculation for care workers may be a 12 week average formula across the board, instead of employers having to consider what payments should and should not be included in the calculations. The Government may also revisit the ECJ decisions which entitle care workers to reschedule a period of planned leave if they become unfit to work during a period of statutory holiday.
The UK may also wish to remove the cap of 48 hour average working week under the WTR and some commentators have suggested that this is a foregone conclusion.
- Agency workers
Another area that could be targeted for complete revocation which would have huge impact on the care sector is the right of agency workers to the same basic working conditions (for example, pay and annual leave) as equivalent permanent staff after 12 weeks as it wasn’t popular at Government level when it was introduced. However the Government has not so far indicated this to be its intention. On the contrary, following the recommendations of the Taylor review, it proposes to strengthen agency workers’ rights under the Agency Worker Regulations by removing the “Swedish derogation” so that all agency workers have the right to pay parity with effect from April 2020 which would be a welcomed change in the care industry.
The Government previously stepped back from proposals to repeal the rules on service provision changes (which go beyond the EU minimum) on the basis that the rules provided certainty. We might, however, see changes making it easier to harmonise terms and conditions following a transfer, or the watering-down of information and consultation rights.
Going forward we will have to see how this impacts on the types of claims that we currently see from this industry…
Alexandra Simpson, solicitor, BLM