Employment Law & Pensions – Top 5 Issues (Jan 2021)

1. Restrictions on free movement of workers – From 1 January 2021, the EU free movement of persons no longer applies to the UK. Host country immigration rules and processes for third country citizens will generally apply to UK nationals travelling, residing and working in EU Member States and vice versa. The Agreement on the withdrawal of the UK from the EU of February 2020 (the Withdrawal Agreement) sets down rules for those who were already living and/or working in a host country before 31 December 2020 regarding rights to remain, protection from discrimination and social security rights, amongst other matters.
   
   The EU-UK Trade and Cooperation Agreement of December 2020 (the Agreement) introduced reciprocal commitments to facilitate the temporary transfer of employees of companies located in one party to the Agreement to the other party, as intra-company transferees, to work in an associated company.
   
   Ireland and the UK are members of what is known as the Common Travel Area (CTA) which ensures the equal treatment of nationals from one CTA country in another CTA country in areas such as residence, work, social security and education. Please click here for a summary of the applicable immigration rules and processes in Ireland and the UK for Irish and UK citizens after 31 December 2020. Please click here for a summary of the applicable rules and process in Ireland and the UK for citizens of the European Economic Area.
2. Non-regression of employment law protections – The EU and the UK have committed in the Agreement not to weaken or reduce the level of employment protections and entitlements in existence on 31 December 2020 (known as the 'non-regression' principle) in a manner which impacts trade and investment between the EU and the UK, including by failing to effectively enforce the law and standards. This commitment extends to:
   
   •  fundamental rights at work;
   
   •  fair working conditions and employment standards;
   
   •  occupational health and safety standards;
   
   •  information and consultation rights at company level; and
   
   •  restructuring of undertakings.
   
   Both parties also committed in the Agreement to seek to increase employment protections over time.
3. Potential for divergence of employment law protections – The Agreement seeks to ensure a 'level playing field' between the EU and the UK in certain policy areas including employment, tax, social policy and the environment. The Agreement provides for enforcement tools and rebalancing mechanisms should either the EU or the UK introduce measures unilaterally which distort this level playing field.
   
   Despite this, there is still scope for divergence of employment protections which do not meet the relevant threshold to be considered a distortion of the level playing field, though this may not occur in the short-to-medium term. UK courts also need only pay due regard to the caselaw of the Courts of Justice of the EU (CJEU) handed down from 1 January 2021 and may diverge from CJEU caselaw issued prior to that date in certain circumstances. Areas of likely divergence include transfer of undertaking employee protections and holiday pay.
4. Recognition of qualifications – As of 1 January 2021, UK nationals, regardless of where they obtain their qualifications, and EU citizens who acquire their qualifications in the UK, will generally no longer have their qualifications recognised in accordance with EU rules across the EU. Those impacted will instead have to rely on the rules of each EU Member State relating to recognition of qualifications of third-country nationals. However, the Agreement leaves open the possibility for the EU and the UK to agree arrangements for the mutual recognition of certain professional qualifications on a case-by-case basis and for specific professions.
5. Cross border EU/UK pension schemes –Irish based employers contributing to UK cross-border schemes will need to assess the impact Brexit has had on their ability to continue to do so. The European Commission has confirmed that sponsoring employers established in the UK which pay contributions to Irish pension schemes will be able to continue to do so. 

Contact:  

Catherine O'Flynn Partner Email Catherine D: +353 1 639 5136