Brexit: More Than Six Months In—Where Are We Now?

​More than six months have passed since the U.K. officially left the European Union on Dec. 31, 2020, yet the post-Brexit landscape remains far from settled. Below we have outlined some key impending changes, as well as continuities, that employers should be aware of at this six-month junction.

Confirmation of continuity for U.K.-EU data transfers: On June 28, the European Commission issued two decisions under the General Data Protection Regulation (GDPR), which follow the draft decision that was issued on Feb. 19. This move was eagerly awaited given the expiration at the end of June of the temporary "bridging mechanism" between the U.K. and EU, which was intended to ensure consistency in data flows immediately post-Brexit. These decisions formally recognize the U.K. as a country that offers adequate personal data protection and enable the free movement of personal data between the EU and the U.K. until 2025, with renewal being contingent on the U.K. remaining aligned with the EU GDPR's standard of protections. Without such recognition, U.K. and EU data transfers would have become more complex and onerous, needing to be subject to a prescribed data transfer mechanism, such as standard contractual clauses.

June 30 marked some changes:

• Right to live in the U.K. ("settled status"): EU citizens and their family members who were residing in the U.K. before Dec. 31, 2020, had to apply for settled status (i.e. the right to remain indefinitely in the U.K.) under the EU Settlement Scheme June 30. Calls for a general extension to the deadline have been rejected. Any EU citizens who have begun residing in the U.K. after Dec. 31, 2020, must instead follow the U.K.'s new points-based immigration system.
• Right-to-work checks: Until June 30, employers of EU citizens could rely on European Economic Area (EEA) nationality documents (i.e., passport, ID cards) to confirm a prospective worker's right to work in the U.K. After this date, employers will require proof of immigration status (i.e., under the EU Settlement Scheme or the U.K.'s new immigration system) to show the person's permanent right to work in the U.K.

New rules for work-related travel between the U.K. and Europe: Frustratingly, there is no uniform approach to the country rules for work-related travel between the U.K. and EU. Careful review is needed to determine whether travel can be covered under business visitor rules, and whether a work permit or so-called posted worker declaration may be required. If it is, this can trigger the need to file applications ahead of time, which can delay travel or cause issues on arrival. Even permitted business travel requires close monitoring, as 90 day stay limits in the EU and 180 day stay limits in the U.K. apply. For employees on business travel, when COVID-19 related restrictions permit, employers may want to prepare a checklist of the key restrictions and key steps applied to work-related travel between the U.K. and specific European countries.

European legal principles remain relevant: U.K. courts are no longer bound to follow new EU laws or European Court of Justice (ECJ) decisions. However, EU law up to Dec. 31, 2020, has been incorporated into U.K. law and is retained EU law. And EU law was still used to interpret U.K. law up until the end of the transition period, until the end of 2020. This has had surprising results, as shown by the following recent significant cases.

• TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006—Acquired Rights Directive): U.K. law is following the difficult decision of the ECJ that employees can now transfer to multiple transferees as part of an outsourcing or business transfer (the ECJ Govaerts decision). Previously, U.K. law held that employees can only transfer to a single new employer.
• Equal pay: It is now easier to bring an equal pay claim, by comparing against a higher-paid employee at a different site or business, provided that the same employer is responsible for setting pay. This is based on EU equal treatment rules because the U.K. litigation started pre-Brexit. This principle now applies to all U.K. equal pay claims. Claimants no longer need to show that they are either working in the same employment or are in the same service as a better paid comparator where their terms and conditions are attributable to a single source. (K and others v Tesco Stores Ltd.)
• Protection for beliefs: A new case has set a high bar, that beliefs would have to be at the level of "totalitarianism" or to "seek to destroy others' rights" for the individual to be expressing it to be outside the protection of rights under the European Convention of Human Rights (ECHR). The U.K. still belongs to the ECHR despite leaving the EU. This was applied to mean that "gender-critical" beliefs, including a belief that a person's sex at birth cannot be changed, is protected by law. (Forstater v CGD Europe.)

As time goes on, we expect to see more divergence between U.K. and European law. But for now, the picture is complicated. Businesses will continue to deal with the aftermath of Brexit for some time to come.

Tessa Cranfield and Verity Musselwhite Steel are attorneys with Seyfarth in London. Gabriele Vennewald is a senior global mobility specialist with Seyfarth in Atlanta. © 2021 Seyfarth. All rights reserved. Reposted with permission of Lexology.