Adapted on 4 January 2021
In our previous employment law issue of the series of articles What’s for Brexit, we discussed the consequences of the Brexit for British employees working in the Netherlands. This episode discusses the opposite situation: the Dutch employee who works or will work in the United Kingdom.
As mentioned in the previous episode, a Brexit transitional period applied until 31 December 2020. During this period, all EU rules and laws continued to apply to the UK. This meant that the free movement of workers also continued to apply: Dutch workers were free to live and work in the UK (and vice versa). So until 31 December 2020, nothing changed for cross-border workers. But the Brexit agreement has quite a few consequences for Dutch workers in the United Kingdom. These consequences are discussed below.
Points-based immigration system
From 1 January 2021, the United Kingdom will apply a points-based immigration system for all foreign citizens, whether they come from within or outside the EU, EEA or Switzerland. The United Kingdom gives priority to individual competencies and talent over the country of origin. On the basis of the points-based system, an immigrant can be eligible for four different types of visa: seasonal workers, students, skilled workers and global talent immigrants. Each visa has a different points system and specific requirements. It would be going too far to discuss all this in detail here, for more information see the website www.gov.uk.
Dutch workers who already resided and worked in the UK before 1 January 2021 will have until 30 June 2021 to apply under the EU Settlement Scheme if they wish to continue to live and work in the UK after 30 June 2021.
With the Brexit agreement, the United Kingdom has agreed that it will not reduce or weaken employment rights to below the standards that already existed in the UK on 31 December 2020 – but only to the extent that this affects trade or investment. This ‘non-regression clause’ covers fundamental rights, health and safety standards, fair terms and conditions of employment, participation rights and corporate restructuring.
The UK’s ability to make significant changes to employment law is thus – albeit to a certain extent – limited. The idea behind the ‘non-regression clause’ is to create a ‘level playing field’ between UK- and EU-based employers. Major changes, such as the abolition of working time regulations or the removal of temporary agency workers legislation, are very likely to have an impact on trade, as this would give British employers a clear competitive advantage. Smaller changes, such as changing a particular aspect of holiday rules, are unlikely to affect trade in the same way and may therefore be permitted.
Another consequence is that the UK is no longer bound by the future case law of the Court of Justice of the European Union (CJEU), and that certain UK courts may (even) deviate from already existing CJEU rulings if it “seems right to do so”. Despite the fact that the UK is no longer subject to judicial proceedings of the CJEU, an arbitration procedure offers a new way for the EU to review the UK’s compliance with the agreement and possibly take ‘rebalancing measures’. This is the case if the UK deviates from EU rules in a way that has a material effect on trade or investment.
Again, it would be going too far to discuss all the changes to employment law in this article. Please refer to the Brexit agreement for more information that is currently available.
The foregoing does not mean that working conditions and rights for (cross-border) workers working in the UK from 1 January 2021 are immediately unfavourable or will soon become so. Indeed, the UK is still bound by its own laws and regulations based on EU law. To some extent, however, the UK is free to do so, as it does not have to comply with EU laws and regulations to the extent that a derogation has no effect on trade or investment and can only be controlled to a limited extent. Although this is unlikely to be the case in the short term, employers based in the UK can – and will – make use of this derogation in the long term.
The Brexit(-deal) has rather far-reaching consequences for the Dutch employee who works in the United Kingdom or wants to work in the future. For example, the UK has stricter admission requirements and to some extent the working conditions, employment conditions and rights of workers will no longer have to be tested against (protective) EU laws, regulations and case law.
The next episode looks at the implications for social security. For example, can Dutch workers who go to work temporarily in the United Kingdom simply continue their social security rights? Stay tuned!