- Posted Wednesday December 16, 2020
On December 31st 2020, the transition period will be over. Although the UK will not need to adhere to any future decisions from the European Court of Justice, the European Union (Withdrawal) Act 2018 (the Withdrawal Act) provides for existing EU law to be converted into UK law and referred to as “retained EU law”.
This means that EU employment law will still be followed in the UK until the government makes some changes domestically, which is expected, but not likely to happen in the short term.
Currently, the British courts are held by decisions in European courts. After the end of the transition period, British courts will have to consider any retained EU law (decisions made before Brexit) but not consider any made afterward. The UK Supreme Court and the High Court of Judiciary in Scotland will also have the right to make a different decision (to previous EU Case law) if they think it is right to do so.
From January 1st, 2021, the EU's GDPR will be incorporated into British Law as “UK GDPR”. Many of the fundamental parts of the GDPR will be retained such as data protection principles, the role of the controller and processor, and the rights of data subjects.
GP Practices should therefore continue to follow the guidance of the ICO. What may change, however, is should there be a need to transfer data abroad, safeguarding as mentioned in the GDPR may need to be followed, though this is currently being negotiated as part of the exit agreement.
Checking a Job Applicants Right to Work
You should continue to check applicants' right to work in the same way as you would now until it changes on 30th June 2021 (follow this link for more information).
However, 'free movement' ends on the 31st December 2020 and from the 1st January, any applicants who do not live in UK will require the employer to have a sponsor license.
Further information about employing people from abroad can be found here on the gov.uk guidance page.
What Can We Expect to Change?
Although we are not expecting to see much of a difference at first, it is highly likely that the government will make some changes to employment law in the not too distant future. Some of the changes that are agreed to be most likely are:
- TUPE Regulations. It is currently very difficult to align contracts under TUPE regulations. Currently when employees are moved to a new business their terms and conditions in their contracts are protected and it is very difficult to change them, even if they are significantly “better” than their new colleagues. This can cause some serious problems for businesses, such as employees having differing holiday day entitlements and sickness provisions, for example. It is expected that it will be made easier to align contracts under TUPE regulations in the not too distant future.
- Working Time Directive. It is likely that the WTD may be amended soon, specifically around holiday pay for Part-Time employees, break entitlements, and the cap on 48-hour working week. This may sound drastic and no one voted for reduced workers' rights. We will need to wait and see what happens, but there are not likely to be any change in the short term. We must also remember that the EU guidelines only allow for 4 weeks holiday per full-time employee, the UK government increased this to 5.6 weeks, so we do need to have faith.