One of the key sticking points appears to be the extent to which the Court of Justice of the European Union will continue to have jurisdiction over any future disputes. As things stand, the Court's jurisdiction over the UK will end on 31 December.
Existing employment law is heavily influenced by the EU, but none of that will change - at least, not immediately. Existing EU law has, broadly speaking, been converted into UK law as retained EU law. Key areas, such as protection against discrimination for those with "protected characteristics" (eg age, race, religion), will continue on the same terms as presently. Rights around maternity, paternity and other similar leave will also remain unchanged. However, it of course remains to be seen the extent to which domestic law may start to diverge from EU law.
One key area that is changing relates to the free movement of people. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received Royal Assent in November and provides for the end of the EU's free movement rules in the UK at 11pm on 31 December 2020. New Immigration Rules have already been introduced to pave the way for increased levels of visa sponsorship by employers under the new Skilled Worker route.
EU, EEA and Swiss nationals and their eligible family members who are living in the UK by the end of the transition period must apply to the EU Settlement Scheme for immigration status that permits them to continue living and working here. The deadline to apply is 30 June 2021. Although nearly 4.5 million applications have been made under the Scheme already, some eligible EEA nationals may not yet have applied so employers are advised to ensure that all valued employees are aware of the Scheme and its deadline.
There is still some confusion amongst employers on the checks they need to be conducting after the Brexit transition period ends to establish that employees have the right to work in the UK.
The Government has said that the right to work checklist and guidance will not change until 1 July 2021 so until then employers can continue to accept, for example, an EU national passport as proof that someone has the right to work in the UK. We are also told that after 30 June 2021 employers will not need to conduct retrospective checks on existing employees, including those EEA nationals who start work between 1 January and 30 June 2021.
However, employers will still be anxious to ensure that their employees have the required immigration permission. Even if they are not liable to a civil penalty for employing an illegal worker because they have conducted the required checks, there may be business continuity issues if employees suddenly have to leave the UK. EEA and Swiss nationals who are not eligible to apply under the EU Settlement Scheme must have some other form of immigration permission entitling them to work from 1 January onwards and if an employer knows or has reasonable cause to believe that an employee does not have the right to work then they lose their statutory excuse.
Therefore, in addition to reminding existing employees of the EU Settlement Scheme and encouraging them to apply, employers may want to consider their recruitment forms and paperwork to ensure that they strike the right balance between ensuring that they do not discriminate, while making applicants aware that that they may need some additional form of immigration permission to work in the UK.