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Brexit - Employment Law

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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 the automatic right to travel and work freely across the EU.

We are currently in a transition period during which Brexit has no immediate consequences. Although the Withdrawal Agreement already governs some topics, there is no full agreement yet with regard to the period as from 1 January 2021. It is still unclear whether there will be an agreement. Our government is therefore preparing Belgium for a 'no deal'-Brexit. 

Transition period until 31 December 2020

On 1 February 2020, the EU and the UK entered into a transition period until 31 December 2020. 

During this period, nothing changes for employers and employees in both the EU and the UK. Although the UK is no longer a member of the EU and no longer takes part in EU decision-making procedures, all EU laws and rules temporarily remain applicable to the UK.

Meanwhile the EU and UK will try to agree on a new partnership for the future. 

As from 1 January 2021

Due to the transition period, the concrete impact of Brexit has been postponed until 1 January 2021. 

UK employees will then be considered third country nationals. The consequences of this status will depend on the deal or no-deal scenario at the end of the transition period. 

‘No-deal’ 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) might apply, which could impact recruitment from/to Belgium/UK.
  • 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.
  • EU Directives will no longer apply in the UK. 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. 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. 

    The EU directives will of course continue to apply on UK employees working in Belgium, via Belgian national legislation. 

Specific rules for EU citizens residing in the UK, and the UK nationals residing in the EU at the end of the transition period

Irrespective of whether there will be a deal or no-deal Brexit, the Withdrawal Agreement already governs the post-transition period for the EU citizens residing in the UK, and the UK nationals residing in the EU at the end of the transition period (and only for these people). 

EU citizens residing in the UK, and UK nationals residing in the EU at the end of the transition period can continue to do so after the transition period provided that their residence is in accordance with EU law on free movement. 

UK nationals residing in Belgium with a valid residence document (so-called E(+) or F(+) card) will therefore be invited by the town hall of their place of residence in Belgium to apply for a new residence permit. Hence, for UK nationals who have not have formalized their residence, it is recommended to do so in due time. 

The Withdrawal Agreement also protects the family members who do not yet live in the same host state, and children, wherever they are born before or after the withdrawal.

The persons covered by the Withdrawal Agreement will have the right to take up employment or to carry out an economic activity as a self-employed person. They will also keep all their workers' rights based on the free movement of workers, including: 

  • the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment; 
  • the right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host state, 
  • the right to employment assistance under the same conditions as the nationals of the host state, 
  • the right to equal treatment in respect of conditions of employment and work, 
  • the right to social and tax advantages, 
  • collective rights,
  • the right for their children to access education.

The Withdrawal Agreement will also protect the rights of frontier workers or frontier self-employed persons in the countries where they work.

As regards social security, the Withdrawal Agreement protects all EU citizens who, at the end of the transition period, are in a situation involving both the United Kingdom and a Member State at a time. For those employees, the Withdrawal Agreement extends the EU rules on the coordination of social security after the transition period, as long as their employment situation does not change. Their family members and survivors are protected as well.

Specific Belgian measures in case of a ‘no-deal’ Brexit

See for the supporting measures for Belgian employers in case of a ‘no-deal’ Brexit: our Employment page on Belgium’s hard Brexit law.  

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

Our dedicated Lydian team is ready to assist you with any questions you might have regarding Brexit. 

Contact us with all your questions on brexit@lydian.be

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