Pictured: Deirdre Crowley, Partner, Matheson
Deirdre Crowley, Partner in Matheson, explores the 3 key areas for Irish employers preparing for the UK’s departure from the European Union in December. They are (1) the transfer of Personal Data to the UK, (2) Immigration, and (3) Employment Contracts
Transfer of HR and Personal Data to the UK
Digital transfers between the UK and the EU amounted to 13% of the UK’s total global exports in 2018, so the stakes are very high for the UK and, unfortunately, for us in Ireland.
The UK government has written the GDPR into UK law so that, after Brexit, a “UK GDPR” will apply. Irish organisations that process UK employees’ or customers’ data will need to know how this differs from the EU GDPR. Prime Minister Johnson has said there will more than likely be “separate and independent policies” in UK data protection. Much will change therefore for Irish organisations processing personal data in the UK.
Unless anything changes between now and then, from 1 January 2021, the UK will be considered a non-EEA country under European data protection law, meaning that the legal mechanisms already in place for personal data transfers to non-EEA countries will also apply to those from Ireland to the UK.
A Model Clauses Agreement (MCA), the most common legal mechanism used to transfer data from Ireland (and the EEA) to non-EEA countries, is what we typically advise clients to use as the basis for data transfers in the context of Brexit. Other mechanisms include a country adequacy decision and binding corporate rules. The UK’s preference is to seek an adequacy decision, but it is increasingly unlikely that this will be granted ahead of 1 January 2021.
2020 is a year of change, not least in the way in which Irish and European data exporters must deal with international transfers of data, to include transfers to the UK from 1 January 2021 onwards. Some key changes are that data exporters must:
- Implement case specific measures to ensure that the data protection legal environment in the UK/ receiving country is equivalent to that offered in the EEA
- Understand and guard against the unlawful processing of personal data by third-party UK government agencies, and also understand the legal protections available to data subjects in the UK.
- Audit, and if necessary enhance, the information security measures in place to protect against unlawful processing of personal data in the receiving country.
Subject to a number of limited exceptions, as of 1 January 2021, EU and non-EEA nationals looking to work and live in the UK will need to obtain a visa.
One important exception is Irish nationals working in the UK, or UK nationals currently working in Ireland, who will be exempt from this requirement where the Common Travel Area (“CTA”) continues to apply. Under the CTA, Irish citizens are not considered as ‘foreign nationals’ in the UK including Northern Ireland. Likewise, UK citizens are not considered as ‘foreign’ in Ireland. Therefore, immigration requirements do not currently apply to cross-border workers travelling between the UK, Northern Ireland and Ireland.
In May 2019, the British and Irish governments signed a Memorandum of Understanding (“MOU”) reaffirming their commitment to maintaining the CTA in all circumstances. It is likely therefore that under the terms of this MOU, the Protocol on Northern Ireland / Ireland and the Withdrawal Agreement, the CTA will continue to exist after January 2021. As such, the right of Irish nationals to work in the UK, and of UK nationals to work in Ireland, should not be impacted by Brexit, effectively continuing to allow them to work visa-free in either country and to travel freely between them.
How professional qualifications will be recognised post-Brexit is another area of concern. Under the Withdrawal Agreement, a person who had their professional qualifications recognised in the country (an EU Member State or the UK) where they currently reside or work, will be able to continue to have their existing professional qualifications recognised as before. However, qualifications issued by UK bodies after 31 December 2020 may not be automatically recognised in Ireland. This particular issue is still under consideration.
If the free movement of workers between the UK and the EU ceases with a hard Brexit, and in the unlikely event that the CTA ceases to exist, a UK national seeking to live and work in Ireland would be subject to the usual immigration rules that apply to non-EEA nationals entering Ireland to work. This would mean that a cross-border worker would need an employment permit, and potentially an entry visa, before being permitted to work in Ireland.
Generally, subject to immigration considerations, employment contracts between Irish employers and UK employees will be unaffected by Brexit.
One area to watch is post-termination non-compete / non-solicitation clauses that are restricted to EU countries only. Irish employers may need to decide whether or not to include an amendment specific to the UK market after 1 January 2021.
What should employers consider?
We recommend that employers undertake a full employment law compliance audit as soon as possible, to avoid compliance issues on and after 1 January 2021.