Brexit – the impact on employment law

EU legislation and case law has had a huge impact upon UK employment law and so it is very likely that BREXIT will have an impact on employee protection and employee rights but how much of a change are we likely to see?

The first thing to keep in mind is that nothing is going to happen quickly.  Even if the government intended to remove all EU generated employment legislation it will take a long time to do this.  EU legislation and case law runs like a thread through nearly every aspect of UK employment law.  It will not be as straightforward as simply repealing a few acts and regulations.  Government lawyers will be busy for quite a while.

In addition it is unlikely that any UK government would be keen to remove all of the protection granted by European legislation. This government and the coalition government before it have changed employment rights (e.g. ET fees, increasing unfair dismissal service requirement to 2 years) but they have left the bulk of employee protection in place.

It should also be borne in mind that not all employment protection comes from EU directives.  Whistleblowing protection (under PIDA) arose purely from the UK legislature (although other EU countries have similar protections); equally some protections (e.g. equal pay) were introduced when the UK joined the EU.

So where might there be some changes?

The likely areas for change are:

  • TUPE – In principle it could be removed in its entirety but we anticipate that it will remain albeit with some modification.  We would expect the government to relax the prohibition on post-termination harmonisation of terms and conditions.  They might also relax the consultation obligations.
  • Agency Worker Regulations – giving agency workers rights after 12 weeks appears to be unpopular with employers and is unlikely to be strongly defended by the unions so this protection could be removed.
  • Working Time – It’s unlikely that the protections on working time will be removed but we would expect the government to modify the provisions.  The ghost of the Bear Scotland case (a case concerning holiday pay) could be put to rest with the government clarifying that a week’s pay is limited to basic salary only.  They could also make changes to the way sick pay accrues during a period of sickness absence (e.g. limit it further or remove it altogether on the basis that workers do not  need a break from working time if they are off sick).
  • Discrimination –There are unlikely to be any significant changes but there is the possibility of the government introducing a cap on discrimination awards as there is for unfair dismissal awards.
  • Collective Redundancy Consultation Obligation – This is unlikely to be removed entirely but the numbers could change (e.g. only required where you propose to dismiss 100 or more at one establishment within a period 90 days or less).
  • There is no certainty that existing EU nationals living and working in the UK will be able to remain or in relation to what the entry requirements for those individuals and new EU migrants might be post Brexit. However, the government issued a statement on 11 July 2016 to reassure EU nationals living in the UK, which stated “When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected. The government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.”
  • A Private Members’ Bill has recently been introduced to Parliament (on 12 July 2016) proposing to grant EU citizens the right to stay resident in the UK following the UK’s withdrawal from membership of the European Union.

There is great uncertainty at the moment about how BREXIT will impact upon the UK economy.  If the economy is adversely affected there may be more willingness from the government to reduce employment protection in order to make the UK more competitive but it is too early to tell. David Davis is now confirmed as being the new “Minister for Brexit” in the challenging position of negotiating Britain’s exit from the EU.

We anticipate a lot more discussion on potential changes to employment law in the months and years to come. We will keep you updated on developments.