Your business post-Brexit: What has changed & what should you do now?

On Christmas Eve, the nation was informed that the UK and EU had struck a Brexit deal. The transition period is now over, and a clearer picture of the future relationship between the UK and EU has emerged. Helen Howes, corporate and employment solicitor, answers some of the key questions.

Click the links to jump to the topics:

Brexit and your business

• Brexit and GDPR
• Brexit and commercial contracts
• Brexit and employing people

Brexit and GDPR

How does Brexit affect GDPR? Has anything changed?

The Brexit Treaty allows for personal data to flow freely between the UK and the EU (and EEA) for a four month period, extendable to six months. So, in this respect, things won’t change for another few months.

Information Commissioner, Elizabeth Denham, said “This means that organisations can be confident in the free flow of personal data from 1 January, without having to make any changes to their data protection practices.”

The ICO adds “As a sensible precaution, before and during this period, the ICO recommends that businesses work with EU and EEA organisations who transfer personal data to them, to put in place alternative transfer mechanisms, to safeguard against any interruption to the free flow of EU to UK personal data.”

This is because, although it is hoped that following this period the UK’s data protection laws will be formally deemed ‘adequate’ by the European Commission, allowing free data flows in both directions, this is by no means certain, and the proposal faces opposition in certain quarters.

Four to six months is not a long period of time if you need to put operational changes in place, and you would be well-advised to start preparing if the changes are set to affect your business. We can help you with this.

What other matters may affect my organisation? Do I need to act now?

As the UK is now outside of the EU, it is regarded as a ‘third country’, and as a result many UK companies will need to have an ‘EU representative’ in place to act as a direct contact for the individuals whose data they are processing, and also data protection supervisory authorities in the EEA.

You will need an EU representative if your business does not have offices or branches in the European Economic Area (EEA) and you are offering goods or services to individuals in the EEA, or monitoring their behaviour through e.g. targeted advertising or data ‘profiling’, and are holding or processing their data for those purposes. This has become a requirement for UK businesses as of 1 January 2021, and for businesses in the rest of the world it’s been a requirement since 2018.

Take this quick quiz to find out if you should have an EU representative.

Various data protection services organisations can act as your EU representative, such as our sister company, Willans Data Protection Services.

Brexit and commercial contracts

How does Brexit affect our commercial contracts? Has anything changed?

It’s not too late to review contracts, particularly looking at the definitions of key terms. For example, if it refers to the EU as a ‘territory’ you need to identify if the definition covers member states ‘from time to time’ or does it specifically name countries? Similarly, if there is any legislation that is key to the operation of the contract you should check for a clause which says that references are to provisions as modified or re-enacted, and be careful of automatic renewal clauses as now may be a pertinent time to review terms.

Is there anything else our business should be doing?

It would also be sensible to review any contractual mechanisms in place for pricing, and also which party would be liable should goods take longer to deliver or perish as a result of border delays. Do remember that if the contract is silent, responsibility for goods being delivered late or goods or services not being supplied due to changes in law are likely to fall on the supplier.

Brexit and employing people

Are there any changes to employment legislation?

There are no immediate employment legislation changes as a result of the end of the transition period. It has been mooted that the rules surrounding the transfer of employees on a business sale (TUPE) could be amended, but this is a long-term change.

It is worth bearing in mind though, that the UK courts will not be bound by new decisions of the ECJ to the extent that they were, although all previous ECJ decisions are enshrined into UK law.

What about employing EU citizens?

A new points-based system and a new ‘skilled worker’ immigration category is now operational in the UK. Should you wish to employ an EU citizen who had not arrived in the UK by 31 December 2020, you will only be able to employ them if you  sponsor them. You will need to be registered with the Home Office to do this, and evidence that the role you want the individual to fill meets the minimum skill level and minimum salary set by the government for roles of that kind.

How do we become registered with the Home Office?

You will need to make an application to UK Visas & Immigration for a ‘sponsor licence’ in which you will need to provide detailed information about your business, the role you wish to fill and the individual. It is always sensible to obtain advice from a business immigration specialist as there are many rules to navigate and constantly changing guidance!

Will right to work checks change?

The government has made it clear that businesses do not need to change how they carry out right to work checks until the middle of the year. So for the time being, businesses are able to carry on with their usual checks, and are under no obligation to check if EU citizens already in their employment have made their application to stay in the UK under the EU settlement scheme. The government has also announced that in the future it intends for there to be more online checks available for employers to use to check an individual’s right to work.

We’re here to help

Helen advises clients on corporate and commercial matters as well as advising on the full range of employment law issues. She has specialist expertise in business immigration matters and colleagues who can advise you on all aspects concerning GDPR and data protection. 

Catch up on our free webinar

If you missed our employment and corporate law teams’ recent webinar, ‘Brexit – how your business can prepare’, you can watch it online via the link below.

Webinar: Brexit – how your business can prepare