Employment Issues / Legal Topics

What will Brexit mean for employment law?

European ParliamentAt a recent Brexit debate, hosted by Sage, no one amongst the audience of business leaders could think of any EU regulation that was negatively impacting on their organisation at that time. Despite this, there seems to be an underlying belief amongst those in favour of Brexit that the UK’s membership of the European Union has brought about a rights-focused, ‘health and safety’ state, restricting free trade more than enhancing it. Where employment law is concerned, the reality is very different.

Although some employment legislation may have been formulated in Europe, its implementation in the UK has been in the most part a welcome addition to pre-existing labour laws and those established independent of the EU.

The immediate impact of Britain’s departure from Europe will be minimal on employment law and how businesses – large and small – can and should treat their workforce. The withdrawal process, in any event, is likely to take some years to complete and transition will be a slow process.

Over time, depending on the will of the government, some employee rights and obligations on business may be modified. Although many of the rights employees presently take for granted were established prior to EU influence, any laws that have been implemented because of Europe will be difficult for businesses (and the government) to step away from, whether immediately or over time. The ‘go to’ criticism of EU influence is often the Working Time Directive, but built in breaks and limits on the working week are, with good reason, seen to have a positive effect on productivity and safety as well as on an employee’s working life.

EU giveth and EU taketh away

The most significant demand for change is likely to be focused on the treatment of employees when businesses are transferred. The business world has for many years bemoaned the Transfer of Undertakings (TUPE) legislation, yet, there are many sensible provisions enshrined in the current model. One area that may change is the ability of a company to harmonise contracts following a transfer.

Discrimination legislation, parental leave and other family friendly rights are unlikely to be affected by a withdrawal from the EU. The Equality Act 2010, for example, is primary legislation (and in many respects the amalgamation of pre-existing domestic legislation, some of which dates back to the 1970s). Similarly, many of the family friendly policies that have been adopted have originated in the UK and are seen by many organisations to be essential for the evolution of the modern workplace.

Un-precedent-ed change

How the employment tribunals and courts deal with Brexit will be most interesting. Whether cases decided in other EU countries will continue to be considered as much as they are now, either through obligation or choice, may be controversial. Of course, post-Brexit, it is unlikely to be possible for the UK to seek clarifications of compatibility with European laws from the European Court of Justice or Advocate General, even where the queried legislation is originally derived from Europe.

For business, one of the more significant impacts of any exit from the European Union will be in immigration. The basic principle of free movement of workers (and employers) across member states has impacted on the UK’s workforce, but also its native population, hundreds of thousands of which work in the EU region. Although there are some controls on movement – particularly for those who are without employment – the closing of borders and restriction on migration will reduce the potential pool of employees to recruit from and the employment opportunities available to UK citizens.

In summary, although employment law may change should the UK withdraw from the EU, there will be no big bang. More likely, piecemeal modifications to basic worker rights will naturally evolve as separation moves us slowly away from any legacy European influence.

On 12 May 2016, I will be discussing the impact Europe has had on employment law in the UK in light of several recent cases. For further information and details of how to attend this event in Central London, please click here.

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