Impact of Brexit on NI Employment Law

Posted in : Seamus Says - Employment Law Discussion on 8 January 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Brexit

What has been the impact of Brexit on employment law in Northern Ireland? Or if none so far, given we're in the early days of exit, what do you envisage the impact will be?

Seamus: Well, that's an important point, because while we were all consumed with COVID-19 again over the Christmas period, we were also aware that there was the agreement that the government arrived at with the EU in relation to a Brexit date. So there is a deal in place.

As regards to what we anticipate in relation to changes, the good news is that we anticipate very little change in the short term in relation to Brexit. We have now left the European Union. We've gone through the transition period, and we're out the other side of that.

So one thing that I would reflect back on is that we've been told multiple times that UK legislation regarding employment law wouldn't change. And essentially, Theresa May had told us that the government model may protect workers' rights, but would enhance them back whenever she was Prime Minister.

The Secretary of State told Parliament also that the government would entrench all existing workers' rights in British law, whatever the UK's future relationship was with the EU.

And we also have confirmation then that the UK legislation and implementing . . . sorry, the UK legislation implementing the withdrawal agreement, that it provided for EU law to be converted into UK law. I'm not sure if that's . . . no one has the retained EU law. And it's EU-derived employment legislation, which we all depend on if we think about any employment cases that we've had, gone through a tribunal, or in relation even to things like the working time regulations and our holidays. A lot of that is all derived from EU law, and it's going to be protected.

So, in general, workers in the UK will continue to enjoy the rights that they're currently entitled to under EU law.

There have been a couple of things that we have had an impact in or that the withdrawal has had an impact on. Obviously, we have our situation with our settled workers legislation for anyone that is working in Northern Ireland now from Europe.

Also, Scott and I had a quick chat beforehand and we were talking about these frontier worker permits, which essentially permit anyone that might be living on border areas to work within the Republic of Ireland. And that would be if they're based here in Northern Ireland, and they're from Europe, and they're travelling across. Just correct me if I'm wrong in relation to that, Scott.

Scott:  It operates the other way. You're looking at people who would be non-Irish citizens, but they might live in Dundalk and work in Newry or whatever. And those EU or non-EU citizens, whenever they are travelling across the border, would need to have frontier status. If they're EU, it's a frontier status permit.

So it's quite complex, but there have been extensions on that and we can certainly send out some information on that.

 In relation to the employment stuff Ciara Fulton from Jones Cassidy Brett wrote an article a couple years ago that she has agreed to update for us. So we'll be sending that out to subscribers hopefully next week, but certainly very soon, just about the changes and the impact there.

Obviously, with the protocol here, and the fact that employment law has devolved to the assembly, then the fact that something might change in England doesn't mean to say it's necessarily going to change in Northern Ireland either. It's keeping up to date with all these things. Let's do a plug for the Legal-Island Weekly Review. It is quite important.

But yeah, at the moment, I suppose what you're saying is that we don't anticipate too many changes. We have this six-month period where you're looking at getting settled status for EU citizens living over here. And there are issues about people who work on the frontier, with the Republic of Ireland. Yeah, get in touch and deal with those ones specifically. You cannot run at a time to get things through.

Seamus: The other the other issue was there was the concern around GDPR and what will happen as regards UK stepping out of Europe and becoming a third country then in relation to the transfer of personal data. But we understand that a part of the trade agreement provides a . . . there's a further grace period, essentially, to June 2021. And there's an adequacy agreement that's hoped to be in place before then. So it's worth our while watching out for that, but at the minute, I think we can proceed as we were prior to our formal withdrawal there.

The Queen's speech talked about an employment bill. You're absolutely right, Scott, that not everything, just because it's implemented in England, will be implemented in Northern Ireland. It tends to be that most of it does. Sometimes there can be variations done by the time it arrives here. And we're all aware of things like our statutory periods in terms of employment and things like that are different in Northern Ireland.

But maybe some things to watch out. Some of the commentators have said that for Brexit, maybe things down the line, looking at potential changes to the working time regulations. Obviously, we have… that there's due to be heard at the Supreme Court in, I think, the end of June/July.

And we know that'll be an interesting decision whatever way, but obviously with our rights protected in the working time regulations, those decisions should have to be made on the implementation provided here.

Agency worker regulations are also potential one that commentators have been talking about for a moment, TUPE and also maybe imposing a cap on discrimination compensation has been touted as well.

But I don't see certainly anything happening imminently. I think that it will take some time to work through any amendments that are going to be planned. I think we'll get notice of that. There'll be consultation in respect of it. And in the meantime, I think that we can take some comfort from the fact that the government confirmed that we would be working…


This article is correct at 08/01/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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