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Brexit - What Are the Implications for UK Employment Laws

How Might a Brexit from the EU Change UK Employment law

Many of the UK's employment laws come from the EU, including family leave, working time regulations, discrimination rights, duties to agency workers collective consultation obligations, and transfer of undertakings regulations.

On 23 June 2016 Great Britain voted to leave the European Union in the much anticipated Brexit referendum.  Notwithstanding the economic implications this historic decision will have on UK businesses,  one big question for employers and employees alike is how will the Brexit vote affected Britain now it has voted to leave the EU?

We’ve sought out a range of opinions in order to find an answer.

And the general consensus is: there is no clear cut answer!

We like the no-holds barred approach adopted by David Whincup.

Writing in Employment Law Worldview, he stated: “At present, as Winston Churchill would probably not have put it, there has never been a referendum where so little has been known by so many about so much.

“That includes even immigration (the driver for the whole thing in the first place) but applies in spades to UK employment law, comprised as it is of an unholy brew of EU Directives which we may or may not have interpreted correctly, 1970’s-inspired industrial relations law, case authorities and a variety of entirely self-inflicted wounds like the shared parental leave regime.

The short point is that no one really has a clear steer on this – the UK would be in totally uncharted waters here.”

However, although nobody knows what will happen, there are plenty of experts who are prepared to speculate on what MIGHT happen.

They all agree that the kind of deal the UK negotiates with its former partners in the event of a leave vote would be crucial in determining the post-Brexit employment law scenario.

If we continue to trade with the EU we might be forced to accept EU employment laws, without having a say on how they are crafted. 

But would we be obliged to accept them all? And, given the chance, which would we want to change?

Lawyer Fiona Hamor, interviewed by the Manchester Evening News, said: “Most people do not appreciate just how much of UK employment law comes from the EU.

“Discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations including the right to paid holiday and duties to agency workers all stem from European directives.

“In theory, the UK government could repeal all of these laws, however most commentators believe that this is unlikely to happen for a number of reasons.

“It is widely thought that the UK will have to retain a relationship with the EU after Brexit, and the price of a trade agreement may well be adherence to a certain amount of EU employment and social protection.

“Some of the protections employees now enjoy under EU law, such as equal pay, race and disability discrimination laws, and the right of return from maternity leave, were already provided to some extent by UK law.

“Whilst it is not likely that the government would want to remove these longstanding protections, there may be an element of tinkering round the edges.

“For example, a cap could be imposed on discrimination compensation similar to that for unfair dismissal.

“Even where there was no pre-existing UK law, the government is unlikely to remove well established protections such as family leave, discrimination rights and the right to paid holiday under the Working Time Regulations (WTR).

“However, there are aspects of the rights under the WTR that the government may want to amend in the event of a Brexit.

“In particular, the recent decisions of the European Court of Justice on the calculation of holiday pay, rolled up holiday pay, and the right to holiday during periods of sickness absence have been extremely unpopular and caused problems for UK employers.”

Lawyer Elizabeth Slattery, interviewed for HR Magazine, reckons that regulations on record keeping, restrictions on working time and the 48-hour week, and rules around holiday pay, are areas that have been criticised by employers and are likely targets for change if the rules set by EU directives become open to repeal.

Slattery predicts that employers will want to address the current lack of a cap on discrimination compensation. It would be unlikely, in her view, that any scaling back of parental leave would be acceptable either politically or by employers.

The final say goes to Mr Whincup.

“If you were to ask most UK employers which bits of EU-based employment law they would soonest ditch, it is more than possible that there would be little or nothing. 

“In reality, they might cry that all they want is just employment law which is stable, clear and strikes a reasonable balance between the interests of the parties. 

“They will already recognise that UK employment law is a great deal easier to live with than some of its EU equivalents, and that a significant shift further towards the interests of business and away from those of the individual could be an active deterrent to the UK retaining or attracting the best global talent.

“In addition, by the time the terms of any Brexit had been finalised, the Government would have its sights set firmly on the next election.

“It is therefore hard to see that it would then set about any material dismantling of the employment rights of the bulk of the electorate, wooing them with such temptations as longer hours, fewer and less-paid holidays, reduced freedom from discrimination, etc.”

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