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Now that the dust has settled on 2020, we can look ahead to 2021 and what it may have in store for businesses and individuals alike in the world of employment law.  The impact of Brexit is of the course the most significant talking point, but there are also a number of other areas of employment law reform that we can expect to be introduced this year.  This article will aim to act as a guide to such developments.

Implications post-Brexit

At the end of 2020 the Government finally “got Brexit done”; but what does that actually mean for employers and employees?   

Largely speaking, the employment law position post-Brexit will not change drastically.  But there are some key areas that it will be useful to know about going forward.

The headline points (so far as employment law is concerned) from the UK’s deal with the EU under the Trade and Cooperation Agreement (the “Agreement”) are in our opinion as follows:

• Existing employment rights should not be reduced, if to do so would affect trade or investment. 
• For new employment rights, the UK’s position should not diverge significantly from the EU such as to materially affect trade or investment.  If it does, the EU can take so-called “re-balancing measures” which may include tariffs on goods and/or services.
• Employment tribunals will no longer be bound to follow any new decisions of the Court of Justice of the European Union (CJEU).  Notably though, a tribunal can have regard to such decisions where relevant.
• The UK must remain committed to protecting the fundamental human rights and freedoms as set out in the European Convention on Human Rights (ECHR).

The important point is that many employment rights existing as of 31 December 2020 (such as those relating to working time) will probably not change, as if the Government was to propose any changes that could affect trade or investment, then it would risk falling foul of the Agreement and being subjected to tariffs.  However, there is room for the Government to propose what they consider to be improvements to employment rights going forward. 

Separate to the Agreement, there is no doubt that the most significant impact of Brexit to employers is the introduction of the new immigration system, which now means that any employee who is not from Great Britain or Ireland will need to be eligible either under the EU Settlement Scheme or able to obtain a work permit.  Leathes Prior are able to provide specialist advice to employers on this topic, which will cover all of the issues ranging from recruitment through to compliance and enforcement.

Further legislative changes

With all the disruption caused by the COVID-19 pandemic and Brexit negotiations, there were a number of other employment-related changes proposed for 2020 that have had to be postponed. 

Some of the main areas that employers should be on the lookout for in 2021 include:

• The Employment Bill.  This proposed new statute will, amongst other things, look to set up an enforcement body for the labour market and make it a legal requirement for employers to pass on tips to workers in the hospitality industry.
• Neonatal leave and pay.  The proposed introduction of statutory neonatal leave and pay for up to 12 weeks for parents with babies requiring neonatal care has also been delayed.
• Leave for unpaid carers.  The Government consulted on the idea of introducing one weeks’ unpaid leave each year for employees providing unpaid care to others in their lives.  A response from the Government is still awaited.
• Off-payroll working rules (IR35).  See our article here on the changes that were due to take effect in April 2020, but have been postponed until April 2021 at the earliest.
• Post-termination restrictions.  The Government has launched a review into restrictive covenants (with a focus on non-compete clauses) in employment contracts.  Whilst the consultation period is not due to close until 26 February 2021, it seems highly likely that there will be changes to this area of law given the Government’s drive to encourage entrepreneurial spirit and boost economic recovery.
• Extending ban on exclusivity clauses.  The Government is also consulting on proposals to extend the ban on exclusivity clauses in employment contracts to those employees earning under £120 a week.

The above is by no means a comprehensive list of everything we can expect to see in 2021, so HR practitioners can expect that after their 2020 was dominated by all things furlough, this year will be busy too.  As always, we will be quick to provide details of any key changes as and when they arise.

If you have any queries or concerns about the information discussed in this article or about employment law more generally, our specialist team of Employment lawyers would be happy to assist further.  Please email cwalker@leathesprior.co.uk or call on 01603 281139, who will be able to direct you to a member of the team.