The implications of Brexit on UK employment law (Wyn Lewis)
Wednesday, November 16, 2016
Wyn Lewis is an expert in Employment Law and HR services and also focuses on advising on workplace mediation and the management of employee relations. Find out how he sees the employment industry being impacted by current Brexit developments.
On 23 June 2016 the UK voted to leave the EU.
Exactly when this will happen isn’t as clear-cut as we'd imagined. The Supreme Court is, however, considering (on 5 to 8 December 2016, with a judgment expected in early 2017) the Government’s right to trigger Article 50 of the Treaty on European Union (which is the mechanism for leaving the Union) under its Royal prerogative without Parliamentary authority. There may then be clarity about the process.
Meanwhile the outcome will remain murky for some time. In particular, the implications of Brexit on UK employment law are very much up in the air. The only certainty is that there’s a surfeit of headless chickens running around (which, ironically, is a unifying image that’s apparently used in several of the official EU languages – though some of them use rather more vulgar imagery….).
Consider the following galline developments: the Vote Leave Watch group has written to the PM seeking a commitment to continued protection of EU employment rights; the Women and Equalities Select Committee has asked for assurances that pregnancy and maternity rights will not be eroded (but the Government has refused to guarantee that all employment rights protection within the UK will be maintained following Brexit); Labour’s Shadow for Boris Johnson has asked 170 questions of the Government including a guarantee that all existing employment rights underpinned by EU legislation will be retained in the long-term; the House of Commons library published a (lamentably short) briefing paper on the implications of employment law on Brexit; the House of Commons' Women and Equalities Committee has asked for evidence to consider Brexit implications for equality issues; and the Workers' Rights (Maintenance of the EU Standards) Bill 2016-17 (to safeguard workers' EU rights after withdrawal from the EU) had its first reading on 7 September 2016.
It’s all a bit of a mess.
That said, I still think not much will change – at least not in the short time – and you can see my earlier comments on this point on my other blog here. As a reminder, these continue to be my favourite “hits” for changes to UK employment law:
- The right to accrue holiday when off sick? Kick out entirely.
- The methodology for calculating holiday pay? Likely to be made less generous.
- The whole of the agency worker regulations? Kick out entirely.
- The ban on capping bonuses in the financial sector? Kick out or modify.
- No cap on discrimination compensation? Kick out and mirror the unfair dismissal cap.
- No cap on whistle blowing compensation? Kick out and mirror the unfair dismissal cap.
- The right to carry over unused holiday entitlement for 18 months? Kick out or modify.
- Ban harmonising terms and conditions after a TUPE transfer? Modify to allow this.
But people who think that discrimination and other laws will just disappear are probably wrong. Why? There are several reasons for this:
- the Equality Act is primary UK legislation and will stay in place anyway.
- UK family-friendly rights already exceed EU requirements and are unlikely to be watered-down.
- some EU rights have become 2nd nature to UK businesses.
There are nevertheless big issues:
The First Big Issue is freedom of movement of people and related immigration issues. Will foreign workers have to return to their country of origin? Will there be an amnesty? Will London get different treatment from the rest of the UK (and, if so, why not treat Scotland and Northern Ireland, both “Remain” regions, in the same way as London)? Will the consequences of losing of access to the Single Market necessarily make immigration less of a Big Issue so that people have to get over the initial (false) perception that the UK is drowning with Gastarbeiter? Maybe it’s not for a mere employment lawyer to comment on that…
The Second Big Issue will be methodology: how do you keep legislation in place that isn’t primary legislation (such as the Equality Act, which will remain in place regardless of exiting the EU) but is, instead, secondary legislation (such as TUPE) without specifically identifying it (and making sure that some secondary legislation isn’t forgotten and cease to apply as soon as Brexit takes effect)? That will be a tricky job for the Parliamentary writers to achieve.
So for employment law: there’s lots to think about; but don’t expect a lot to change quickly.