Worker Rights and Self-Employment Rights under the UK’s EU Withdrawal Agreement

Introduction

The UK’s EU Withdrawal Agreement contains important protections for EU Citizens and UK Nationals, and their family members of any nationality, as regards work and self-employment. What are these rights and how far do they extend?

The Rights of Workers

As regards EU Citizens in the UK and UK Nationals in an EU state, who fall within the scope of the Withdrawal Agreement as Workers (including employees) in the host State or frontier workers in the state or states of work, such persons enjoy the rights equivalent to those guaranteed to EU Citizens exercising freedom of movement in an EU state other than their own as Workers under Article 45 of the Treaty in the Functioning of the European Union (TFEU) and under Regulation (EU) No 492/2011, see Article 24 of the Withdrawal Agreement. Thus, a German banker working in London is protected on the same basis as a if he were working in Paris.

As regards the EU Citizens and UK Nationals who fall within the scope of the Withdrawal Agreement, see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights.

 These Worker rights that are protected are subject to limitations justified on grounds of public policy, public security or public health. They include the rights:

  • to accept offers of employment actually made
  • to move freely between the UK and the EU state or EU states concerned
  • to stay in the state concerned for the purpose of employment in accordance with the provisions governing the employment of nationals of that state laid down by law, regulation or administrative action, and
  • to remain in that state after having been employed there

These provisions do not apply to employment in sensitive areas of public service that involve the exercise of powers of public law and the safeguarding of the general interests of the state.  

The rights in question include:

  • 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 or the state of work (the UK or an EU state, as the case may be)
  •  the right to assistance afforded by the employment offices of the host state or the state of work (the UK or an EU state, as the case may be) as offered to own nationals
  • the right to equal treatment in respect of conditions of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or re‐employment
  •  the right to social and tax advantages
  • collective rights
  • the rights and benefits accorded to national workers in matters of housing, and
  • the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host state or the state of work (the UK or an EU state as the case may be), if such children are residing in the territory where the worker works.

In respect of the latter, there is also a connected right of residence. Where a direct descendant of a Worker who has ceased to reside in the host state (the UK or an EU state as the case may be) is in education in that state, the primary carer for that descendant has the right to reside in that state until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

In addition, there are connected rights for  workers who are frontier workers, see my post Frontier Workers in the UK and the EU after Brexit: Rights under the Withdrawal Agreement .

The Rights of Self-Employed Persons

As regards EU Citizens in the UK and UK Nationals in an EU state, who fall within the scope of the Withdrawal Agreement as self-employed persons in the host State or self-employed frontier workers in the state or states of work, such persons enjoy the rights guaranteed to EU Citizens exercising freedom of movement within the EU as self-employed or established persons under Article 49 and 55 of the TFEU, see Article 25 of the Withdrawal Agreement. Thus, a self-employed Italian journalist working in London has the same protection as one working in Barcelona.

As regards the EU Citizens and UK Nationals who fall within the scope of the Withdrawal Agreement, see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights.

These rights afforded to self-employed persons do not apply, so far as a given state is concerned, to activities which in that state are connected, even occasionally, with the exercise of official authority. Nor do they prejudice applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

The rights conferred include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host state (the UK or an EU state, as the case may be) for its own nationals. In particular:

  • restrictions on the freedom of establishment of EU Citizens in the UK or UK nationals in an EU state (as the case may be) are prohibited. Such prohibition also extends to restrictions on the setting-up of agencies, branches or subsidiaries by  EU Citizens in the UK  or UK Nationals in an EU state (as the case may be), where they are  established in the host state.
  • Further, the freedom of establishment includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms under the conditions laid down for its own nationals by the law of the host state (the UK or an EU state, as the case maybe, where such establishment is effected.

In this context, ‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.

The rights of self-employed persons also include, as material:

  • the right to assistance afforded by the employment offices of the host state or the state of work (the UK or an EU state as the case may be) as offered to its own nationals
  •  the right to social and tax advantages
  • collective rights
  • the rights and benefits accorded to national self-employed persons in matters of housing, and
  • the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host state or the state of work (the UK or an EU state as the case may be), if such children are residing in the territory where the self-employed person works.

In respect of the latter, there is also a connected right of residence. Where a direct descendant of a Self-employed person who has ceased to reside in the host state (the UK or an EU state, as the case may be) is in education in that state, the primary carer for that descendant shall have the right to reside in that state until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

In addition, there are connected rights for self-employed persons who are frontier workers, see my post Frontier Workers in the UK and the EU after Brexit: Rights under the Withdrawal Agreement .

The Employment Rights and Self-Employment Rights of Family Members

On the same basis as applies to the family members of EU Citizens exercising free movement rights in EU states other than their own under the EU free movement directive (2004/38/EC), irrespective of nationality, the family members of an EU Citizen or a UK National (as the case may be) who have the right of residence or the right of permanent residence in the host state or the state of work (the UK or an EU state, as the case may be) is entitled to take up employment or self-employment there, see Article 22 of the Withdrawal Agreement.

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