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This publication is available at https://www.gov.uk/government/publications/workplace-rights-if-theres-no-brexit-deal/workplace-rights-if-theres-no-brexit-deal
A scenario in which the UK leaves the EU without agreement (a ‘no deal’ scenario) remains unlikely given the mutual interests of the UK and the EU in securing a negotiated outcome.
Negotiations are progressing well and both we and the EU continue to work hard to seek a positive deal. However, it’s our duty as a responsible government to prepare for all eventualities, including ‘no deal’, until we can be certain of the outcome of those negotiations.
For 2 years, the government has been implementing a significant programme of work to ensure the UK will be ready from day 1 in all scenarios, including a potential ‘no deal’ outcome in March 2019.
It has always been the case that as we get nearer to March 2019, preparations for a ‘no deal’ scenario would have to be accelerated. Such an acceleration does not reflect an increased likelihood of a ‘no deal’ outcome. Rather it is about ensuring our plans are in place in the unlikely scenario that they need to be relied upon.
This series of technical notices sets out information to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario, so they can make informed plans and preparations.
This guidance is part of that series.
Also included is an overarching framing notice explaining the government’s overarching approach to preparing the UK for this outcome in order to minimise disruption and ensure a smooth and orderly exit in all scenarios.
We are working with the devolved administrations on technical notices and we will continue to do so as plans develop.
This notice informs businesses, workers and citizens of the UK’s plans to continue workplace protections in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place. This government firmly believes in the importance of strong labour protections. Amendments we are putting in place will ensure legal certainty and clarity for stakeholders on their responsibilities and rights.
Before 29 March 2019
The workplace rights and protections covered in this notice come from EU law and include the following:
- the Working Time Regulations, which include provisions for annual leave, holiday pay and rest breaks
- family leave entitlements, including maternity and parental leave
- certain requirements to protect the health and safety of workers
- legislation to prevent and remedy discrimination and harassment based on sex, age, disability, sexual orientation, religion or belief, and race or ethnic origin in the workplace, and any resulting victimisation
- the TUPE regulations, protecting workers’ rights in certain situations when there is a transfer of business or contracts from one organisation to another
- protections for agency workers and workers posted to the UK from EU states
- legislation to cover employment protection of part-time, fixed-term and young workers; information and consultation rights for workers, including for collective redundancies
- legislation covering insolvency referred to in the Employment Rights Act 1996 and Pension Schemes Act 1993, administering redundancy related payments to employees in case of insolvency. The legislation that applies in Northern Ireland is the Employment Rights (Northern Ireland) Order 1996 and the Pension Schemes (Northern Ireland) Act 1993.
After 29 March 2019 if there’s ‘no deal’
The EU (Withdrawal) Act 2018 brings across the powers from EU Directives. This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law (including those listed above except where caveated below). Domestic legislation already exceeds EU-required levels of employment protections in a number of ways. The government will make small amendments to the language of workplace legislation to ensure the existing regulations reflect the UK is no longer an EU country. These amendments will not change existing policy. This will provide legal certainty, allowing for a smooth transition from the day of EU exit, and will ensure that employment rights remain unchanged, including the employment rights of those working in the UK on a temporary basis, except where set out below.
The UK government will continue to work with the devolved administrations to ensure workers’ rights continue to operate across the UK.
In the following cases, withdrawal from the EU in a ‘no deal’ scenario has impacts on participation in agreed arrangements with the EU which benefit all EU countries:
- Employer Insolvency: Currently, UK and EU employees working in the UK are protected under the Employment Rights Acts 1996 and Pension Schemes Act 1993 (or the relevant legislation in Northern Ireland on employment rights and pension schemes) implementing the Insolvency Directive, with procedures in place for making claims in the case of employer insolvency. Similarly, UK employees working in an EU country are protected by the laws of that country that implement the directive.
- European Works Councils: Currently EU law allows for workers to request, in certain circumstances, that their employer establishes a European Works Council to provide information and consult with employees on issues affecting employees across two or more European Economic Area states. These rules are set out in the European Works Council Directive (2009/38/EC). The statutory framework that applies to European Works Councils would require a reciprocal agreement from the EU for them to continue to function in their present form within the UK.
In a ‘no deal’ scenario, there are no expected financial implications or impacts for citizens or businesses operating in the UK (whether UK or EU-based) in regard to workplace rights. There are some implications in relation to European Works Councils and the insolvency of some employers, laid out below.
With regards to employer insolvency, in a ‘no deal’ scenario, people living and working in the UK for a UK or EU employer will continue to be protected under the same parts of the Employment Rights Act 1996 and Pension Schemes Act 1993 implementing the Insolvency Directive (or the relevant legislation in Northern Ireland on employment rights and pension schemes).
Employees will still be able to bring forward claims in the same way that they can currently. UK law provides protection for all UK, EU, and non-EU employees working in the UK, provided that certain other criteria are met. This will not change as a result of exiting the EU.
UK and EU employees that work outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that country. However, this may not always be the case, as there are variations in how each EU country has implemented the guarantee required by EU law.
European Works Councils
With regards to European Works Councils, in a ‘no deal’ scenario, the government will ensure the enforcement framework, rights and protections for employees in the UK European Works Councils continue to be available, as far as possible in a ‘no deal’ scenario. There are implications for UK businesses and trade unions with regards to their European Works Council agreements.
UK regulations will be amended so that:
- no new requests to set up a European Works Council or Information and Consultation procedure can be made
- provisions relevant to the ongoing operation of existing European Works Councils will remain in force
- requests for information or to establish European Works Councils or Information and Consultation procedures made before EU exit but not completed by EU exit will be allowed to complete.
Actions for businesses and other stakeholders
UK and EU employees working in an EU country
Employees should make themselves aware of the relevant implementing legislation in the EU country in which they work, to confirm whether they will still be protected under the national guarantee fund established in that country.
UK businesses and trade unions
UK businesses with European Works Councils, and trade unions that are parties to European Works Council agreements, may need to review those agreements in light of there no longer being reciprocal arrangements between the UK and the EU.
For further information about the EU (Withdrawal) Act and the statutory instruments for workplace rights please see the below:
- Employment Rights Cover Note
- Affirmative Employment Rights SI
- Negative Employment Rights SI
- Health and Safety SI
Norway, Iceland and Liechtenstein are party to the Agreement on the European Economic Area and participate in other EU arrangements. As such, in many areas, these countries adopt EU rules. Where this is the case, these technical notices may also apply to them, and EEA businesses and citizens should consider whether they need to take any steps to prepare for a ‘no deal’ scenario.
This notice is meant for guidance only. You should consider whether you need separate professional advice before making specific preparations.
It is part of the government’s ongoing programme of planning for all possible outcomes. We expect to negotiate a successful deal with the EU.