As with many aspects of the Brexit fall out, the future of employment law and workers rights is uncertain. However, the some of the more prominent “Brexiters” have previously expressed a desire to abandon some employment legislation which originated from the European Union.
Once Article 50 is triggered, the process of leaving the EU will take at least two years, nothing will change overnight. All EU Directives are implemented through UK laws and they will still remain valid and enforceable, unless and until they are actively repealed. Evidently, Britain will still trade with Member States and the vehicle used to do so will also have an impact. The UK needs to remain an attractive trading partner and EU countries will only want to enter into such agreements if the UK can be seen to be enforcing basic employment rights. If we look to Norway for example, as part of the EEA they are required to abide by the majority of EU employment legislation.
In addition, there are some areas in which the UK goes beyond EU requirements. An example of this is unpaid leave – within the UK we allow for 5.6 weeks per year of paid leave, whereas the EU only requires that Member States provide 4 weeks. The UK had also already legislated on some aspects prior to joining the EU. Equal pay legislation, for example, was introduced in 1970. Brexit will have no bearing on purely domestic rights, such as unfair dismissal.
The areas that are predicted to be most vulnerable to change are as follows:
TUPE is now widely accepted as an important aspect of employment legislation. Protecting the position of staff members on the transfer of a business or undertaking is arguably very important for both employers and employees alike. However, we could see changes to TUPE, post-Brexit, to make the provisions more business friendly.
Working Time Regulations/Annual Leave
As touched on above the UK are considerably more generous than the EU when it comes to paid annual leave. Therefore, this will remain unchanged by Brexit. Something that most likely will be abolished is the requirement that workers are limited to working 48 hours per week. In most cases employees will waive this right anyway, so the impact of this change will be negligible.
Another aspect which causes issues for employers is the accrual of holiday during long term sickness and also the calculation used for holiday pay. Under EU legislation, holiday pay is based on all forms of remuneration including commission and overtime, which is unpopular amongst employers and will likely be reduced back to basic salary as it was previously.
The current legislation on this comes from the Equality Act 2010, which was introduced in response to an EU Directive. Although this could technically be revoked after an exit from the EU, it would be very controversial to do so. Before the Equality Act, the UK already had discrimination law which prohibited discrimination on the grounds of sex, disability and race.
The only slight adaptation could be in regards to compensation, this is currently uncapped (as per EU law) however, post-Brexit it is probable that there will be calls to cap this.
This is the area many believe to be most susceptible to change. It provides that once agency workers have provided 12 weeks service, they attract similar rights to those available to permanent employees. These complex regulations are disliked by employers, and will more than likely be the first area subject to reform.
Again, maternity leave is an area in which the UK is more generous than the EU. Mothers in the UK are able to take up to 52 weeks maternity leave, whereas the EU only requires that 14 weeks are given. Further to this, aspects such as shared parental leave and the ability to require flexible working are domestic laws, with no influence from the EU.
EU law currently requires collective consultations for redundancy when over 20 staff members are being made redundant. This is unpopular amongst businesses and the thresholds are likely to be made more attainable.
Freedom of Movement
Arguably one of the most reported issues surrounding the referendum has been immigration. As it stands any EU citizens are free to move amongst EU Member States and live and work without the need for permission. Large portions of the UK workforce are made up of EU citizens and likewise, there are considerable numbers of UK citizens working abroad in other Member States. As soon as the UK formally leaves the EU, this right is automatically rescinded. The UK may well impose further obligations on EU citizens wishing to work here in the future, and likewise other countries may do the same for any UK citizens. However, until our formal departure from the EU, migrant workers both here and abroad are able to continue working as they have been. Again, if we look to Norway, their membership of the EEA requires them to allow free movement of workers, so depending on what negotiations are entered into regarding trade, Brexit may have no effect on this.
On the whole, it seems unlikely that the UK employment legislation will be substantially reformed once we have exited from the EU. Much of the protection afforded to employees and workers in the UK, such as the right to not be discriminated against, are fundamental rights and it would be far too controversial to make drastic changes. Any adaptations will take time and will be dependent on the resulting relationship between Britain and the EU.
As with most aspects of Brexit it appears to be a case of watch this space!
Rachel O’Connell, Solicitor & Director – Just Employment Ltd