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Implications of Brexit

A fair amount of the UK’s employment law comes from the EU, including discrimination laws, TUPE, Family Friendly rights, Working Time Regulations and Agency worker rules.

In theory, the UK government could repeal all of this.

But, I don’t see that happening

Why not?

  1. Some EU employment laws just absorbed protections that were already provided by UK law. For example, race and disability discrimination laws
  2. Where there was no pre-existing UK right, rights such as paid holiday are deeply entrenched in the UK
  3. We need to maintain a relationship with the EU. The price of a trade agreement with the EU is likely to include sticking with many EU employment laws.

So, the most likely outcome is that the government will tinker with EU-derived employment laws to make them more acceptable to UK businesses, but that’s it.

And nothing is going to happen for years. It will take at least 2 years to exit the EU and many more years to negotiate new trading arrangements

So, what changes might we see in time?

Discrimination law

The Equality Act will remain in force

A cap could be imposed on compensation

Family related leave and pay

Rights to family-related leave and pay are a mixture of rights – some deriving from the EU and some from the UK.

The rights to shared parental leave and to request flexible working are from the UK

I do not expect these rights to be watered down.

TUPE

TUPE attracts a lot of bad press

But, I can’t see us getting rid of TUPE

What may happen is the government will water it down to help business – e.g. by making it easier to harmonise terms following a TUPE transfer.

Holidays and working time

The right to statutory paid holiday won’t be removed

But, what will probably happen, is the government will dilute related rights – e.g. they will prevent employees accruing holiday while on sick leave and ensure that holiday pay is based on basic pay only (not including overtime and commission etc)

I would also expect the 48 hour cap on weekly working hours to be removed

Agency workers

The Agency Workers Regulations are likely to go completely

Data Protection

It is unlikely the UK will repeal or significantly change the Data Protection Act

Freedom of movement

There are lots of UK nationals working in other EU countries and lots of EU nationals working in the UK.

Once we are out of the EU these individuals will no longer have the automatic right to remain.

What will probably happen is a reciprocal arrangement, whereby existing EU migrants can stay in the UK and UK citizens can continue to work abroad.

In the longer term, these individuals could be given time to obtain citizenship of the country in which they are residing or to return home.

Expect a major argument from business, however, if they are prevented from recruiting EU workers. Many have got used to employing EU workers and, in my experience, often rate them higher than UK workers

Also, remember, if we want a trade agreement with the EU we may have to agree to free movement

The transition

When we leave the EU the ECJ would no longer have jurisdiction over the UK courts and its future decisions would not be binding.

For the time being, however, the UK courts must interpret EU-derived law in accordance with ECJ decisions.

Historical decisions would remain binding

The courts might depart from them once we have left the EU but the likelihood is they will continue to follow them to ensure legal certainty

They might also see future ECJ decisions as persuasive, even if not binding.

Final word

The EU is the UK’s biggest export market.

The price of a free trade agreement with the EU may have to be acceptance of many EU employment laws

This is the case for non-EU members of the European Economic Area (EEA), such as Norway.

Norway is obliged to accept most of EU employment law

So – it is very likely that any changes to our employment laws here in the UK will be modest and gradual.

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