The interesting debate taking place amongst politicians and constitutional lawyers about the legal effect of the Brexit referendum has thrown some light on what the ultimate impact is likely to be on UK employment law.
There are more than 35 EU Directives that have resulted in UK employment legislation such as TUPE, the Working Time Regulations and the Agency Worker Regulations. But some Directives have been implemented through primary legislation, i.e. Acts of Parliament. This means that even if the EU Council and the UK Parliament do not agree some Norwegian-style ‘Brexit lite’ free trade arrangement that entails the continuation of EU employment laws, it will remain part of our body of employment laws in any event, unless that UK legislation is repealed. Examples include redundancy consultation requirements, equal pay and equal treatment laws contained in the Equality Act 2010. The most likely secondary legislation to be repealed by a Brexit implementing government is the Working Time Regulations and the Agency Workers Regulations. There may be some watering down of discrimination laws with perhaps the imposition of a cap on economic losses and injuries to feeling resulting from unlawful discrimination. There may be tinkering with TUPE to make post-transfer harmonisation of contracts easier.
The Government has already confirmed in the High Court that it is unlikely to trigger Article 50, the procedure for withdrawal from the EU, before the end of 2016. It is possible that in the two or more years following service of an article 50 notice, during which the UK will of course remain a member of the EU, new European inspired employment laws will be implemented including most obviously the new onerous General Data Protection Regulations in April 2018. Indeed, the UK’s Data Protection Minister last month acknowledged that if the UK remains within the Single Market, EU rules on personal data might continue to apply fully in the UK.
One final thought is that successive UK governments of different complexion have in fact enthusiastically gold plated much European law. The transfer of service provider rules in TUPE is one example. 28 days paid leave is another. Interestingly English Courts and Employment Tribunals have perhaps been more protective of workers’ rights than their European counterparts. It is unlikely that an English appeal court would determine, as in a recent Belgian case, that it was right to stop a Muslim receptionist from wearing a headscarf as a manifestation of her beliefs. Perhaps we should all be careful what we wish for.