Brexit - Employment Law

Major implications

Free movement of workers

One of the pillars of the EU Treaty is the free movement for workers.

This basic principle has been realized in the EU through (a) the absence of mobility restrictions for EU workers, (b) Regulations that coordinate workers’ social security rights and benefits and (c) Directives that harmonize employment laws.

Brexit will have a serious impact on this automatic right to travel and work freely across the EU. There is currently no agreement with regard to the United Kingdom's exit from the European Union on 29 March 2019. It is still unclear whether an agreement will be reached. Our government is therefore preparing Belgium for a 'no deal'-Brexit.

On 19 February 2019, the federal government has submitted a draft Brexit Act in parliament to provide in a temporary answer to the consequences of a ‘no-deal’-Brexit. Amongst others, the draft Brexit Act contains transitional measures for British nationals and their relatives residing on Belgian territory and provides in a temporary extension of the application of the rules on coordination of workers’ social security rights and benefits. If adopted, the Brexit Act would only enter into force if indeed no agreement between the United Kingdom and the European Union is reached by March 29, 2019.

The initiative of the draft Brexit Act is hoped to be answered with reciprocity. Should this not be the case or if the initiatives taken by the United Kingdom are deemed insufficient, the draft Brexit Act explicitly foresees in a possibility to swiftly amend the scope and duration of the Brexit Act without the intervention of parliament being required.

Treaty and Regulations

The free movement of workers will in principle continue to apply until Brexit. In the event of a ‘no-deal’ Brexit, British nationals will be considered third country nationals, who can no longer rely on the principle of free movement for workers.

Stricter requirements on immigration documentation (visa/work permit or Single Permit) would apply, which could impact recruitment from/to Belgium/UK.

Until 31 December 2020, the draft Brexit Act extends the right of British nationals and their relatives, residing on Belgian territory on the date of Brexit, to stay on Belgian territory post Brexit. In addition, in the framework of the draft Brexit Act, the federal Council of Ministers has adopted a draft Royal Decree to guarantee these British nationals’ rights to continue working on Belgian territory until the same date.

Note that both the draft Brexit Act and the draft Royal Decree contain temporary measures only. They do not create any automatic right for British citizens coming to reside and/or work in Belgium after Brexit. The latter will be considered as regular third country nationals and are thus not automatically entitled to reside and/or work on Belgian territory after March 29, 2019.

In the event of a ‘no-deal’-Brexit, social security rights and benefits (pension, unemployment, sick benefits) might no longer be guaranteed as they are now, as the coordination of social security legislation will in principle no longer apply after Brexit. The draft Brexit Act expressly provides in the extension of the application of the rules on the coordination of social security systems within the European Union, laid down in specific European Regulations. For the purpose of the draft Brexit Act, and again only temporarily so until 31 December 2020, the United Kingdom will be equated with a member-state of the European Union.

EU Directives

EU Directives are the basis for a number of employment rights, such as working time, holiday entitlement, health and safety, anti-discrimination, business transfers (TUPE), collective redundancies and EWC participation.

In principle, the UK will still have to transpose any EU Directive that comes into force as from now until the effective date of the Brexit, although it is uncertain whether this will in practice be the case.

In the event of a ‘no-deal’-Brexit, EU Directives will no longer apply in the UK as from 29 March 2019. If there will be changes in UK legislation remains unclear. Driven by a sense of deregulation, some consider that UK might deprive employees of certain rights in order to make business more flexible. Such could impact cross-border employment.

Data protection of HR data

See for the processing of HR data and GDPR: our page on data protection. In the event of a ‘no-deal’-brexit, Belgian employers transferring HR data to the UK need to put in place contractual safeguards to ensure adequate protection of personal data. In case Belgian employers use UK processors, they will need to review contracts and ensure contractual safeguards.

To do

Keep a close watch on the negotiation process and future changes in (international) employment/social security legislation and be prepared to respond swiftly to any developments
Map your expat workforce and prepare the after Brexit reality
Review cross-border employment (expat-secondment) contracts between Belgium and the UK
Prepare yourself for transfer of HR data to a third country
Review your contracts with UK third party providers on data protection compliance

If you have any questions, send us an e-mail (brexit@lydian.be)
or contact Alexander Vandenbergen, + 32 2 787 90 75 or alexander.vandenbergen@lydian.be
or Jan Hofkens, + 32 2 787 90 38, jan.hofkens@lydian.be