Brexit: Wholesale changes to UK Employment Law?

09 June 2016

There has been a lot of speculation as to whether any decision to leave the EU would result in wholesale, or wide ranging changes to UK Employment Law.

The answer is probably not. It should be remembered that much of the established employment laws do not derive from EU law at all. For example, the unfair dismissal rights have their origin in the relatively early industrial relations legislation. Similarly the equal pay, race and disability discrimination legislation was created by the UK parliament. Important rights to maternity leave were created by the UK Parliament, and not the European legislature. The National Minimum Wage, or the Living Wage as it is now called, has purely domestic origin.

Those employment laws that do derive from European Law include:

  • a number of ‘discrimination’ laws;
  • rights in relation to collective consultation on large scale redundancies;
  • the transfer of undertakings legislation (‘TUPE’);
  • certain family leave rights (but not all because parental leave, for example, is uniquely British);
  • the Working Time legislation, such as the rules governing maximum hours in a working week and paid holiday entitlements; and
  • perhaps most controversially, agency workers’ rights.

Many of these rights are so established in the modern UK workplace and employment relationship, most obviously, through the contract of employment and company policies, that it is unlikely that there will be the political will and mandate to remove or change them. Such rights could not be removed from individual employees or workers within the short to medium term, quite apart from the delay that would be caused by the two year negotiating period.

For example, it is very hard to imagine that rights relating to the protection of pregnant workers, or prohibiting age discrimination could, as a matter of political reality, be limited, let alone removed.

There are areas of EU Law that successive British Governments have ‘gold plated’, for example TUPE and the Working Time Regulations (particularly in relation to paid holiday). One can imagine that such enhanced rights might be removed. It is also possible that the Agency Workers Regulations 2010, notoriously complex and considered by many to be a break on flexible working, might be abandoned. However, much of the European Legislation, including the TUPE Regulations (which address many of the practical implications of the transfer of work forces when businesses are acquired or service contracts taken over) are unlikely to be completely abandoned. Similarly, the collective redundancy consultation obligations are likely to be defended by Trade Unions who, if European style work councils are abandoned, will have a more important role to play in collective bargaining and the protection of rights generally.

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