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Sector Insights

Brexit and Employment Law – What will really change?

27.06.2016 Employer's Issues

Many of the UK’s fundamental employment rights stem from EU Directives so what does Brexit really mean for you and your business?

Generally, EU Directives have been codified in UK statute meaning that our imminent departure from the EU will not have a direct or immediate impact on these codified rights. However, with more freedom to legislate these statues may be amended over time and without the necessity to consider the EU Directives any longer.  There will also be a level of uncertainty going forward as we see how our domestic courts interpret these statutes without the requirement to follow the rulings of the European Courts.

Below are some of the UK employment rights which have derived from EU Directives and which may be revisited in light of Brexit:

  • Redundancy Consultation – Employers who are proposing to make 20 or more employees redundant must enter into a collective redundancy consultation. This is a lengthy procedure which has proved unpopular with employers and therefore the thresholds could be raised.
  • Working Time Regulations – Commentators do not expect the 48 hour cap on the working week to survive. This was unfavourable with employers and most workers opt out of this rule anyway, thus the provision has been largely excluded from any meaningful application. It is expected that the right to 20 days’ annual leave which came from the EU together with the enhanced 8 days’ provided by UK statute will not change.
  • Agency Worker Regulations – It is anticipated that this area will change. These regulations require employers to give the same terms and benefits to employees and agency workers who have worked in the organisation for 12 weeks. There was resistance to the implementation of these regulations from employers and if it is proposed that they should be removed, it is thought that there will not be much opposition from trade unions as there are not many temporary workers who are members of unions.
  • Movement of Workers – In his resignation speech, David Cameron reassured Britons in European countries and European citizens in the UK that there would be no immediate changes to their circumstances. As part of the negotiation talks, we can expect that there will be some kind of amnesty that EU migrants could stay (for a reasonable period) in return for UK citizens abroad remaining where they are. Going forward, it will remain to be seen what immigration model the UK government adopts but it will no doubt be a key part of the exit negotiation.
  • TUPE – TUPE is now an accepted part of UK law. This is unlikely to be repealed but could be amended to relax the consultation provisions or to allow the harmonisation of terms and conditions following a transfer.
  • Discrimination law – The Equality Act 2010 contains the provisions to protect against discrimination. It is thought that this will continue to remain without much contention. There are some suggestions that, free from EU constraints, there could be a cap on discrimination compensation as there is with unfair dismissal. The government would also be free to allow positive discrimination in favour of under-represented groups.