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Brexit - effect on Employment legislation

A large amount of UK employment law comes from the EU and these laws affect workers’ rights across the country. With Brexit the Government could ‘in theory’ amend the employment laws but, ‘in reality’ the legal system is quite complex and it will not be easy to just dismantle it, even if there is the political will to do so. There will be many challenges unravelling the EU-derived laws from non-EU-derived laws and this will depend on what the UK negotiates with the EU over the next couple of years.

Budget

The UK’s departure from the EU will mean there is no longer any requirement for us to continue following the EU Directives. However, as the UK has already gone further than it needs in some areas (TUPE, holidays and shared parental leave) it is unlikely that the Government will remove these entirely since many of them have become part of our workplace culture and making changes would be challenging, from a legal and employee relations perspective. So it may be the case that minor adjustments will be made rather than any immediate overhaul. So what might change!

Employment rights such as unfair dismissal and the minimum wage did not come from the EU and will therefore be unaffected.

Discrimination and family friendly – unlikely to see a significant change with only minor changes to discrimination laws

Employment tribunals – they may consider introducing a limit on compensation, a qualifying period for discrimination claims and a shorter period to claim back pay

TUPE - Businesses generally want these rules especially those transferring staff in, so there probably is not much appetite for any substantial change. There may be a bit of tweaking around the collective consultation requirements and the circumstances when we can agree changes to terms and conditions of employment after the transfer.

Fixed-term and part-time workers – we may see a change to limit protection only to employees, rather than workers and also the test for objective justification could be relaxed.

Agency workers - this legislation has not been popular in the UK and the Government tried to resist it for many years. So it is possible that the legislation could be repealed and all protections removed or the protections for agency workers may be diluted.

Working time – the Brexit vote could be an opportunity to implement changes to the many issues that have arisen over the years regarding holiday pay and what should be included in that. So a possible change could include restricting what payments are to be included in holiday pay, the introduction of different reference periods for calculating holiday pay and restricting claims for back pay even further.

Collective consultation – there could be some adjustments to when collective consultation is required in TUPE and redundancy situations as well as reducing protective awards

Free movement - Immigration was one of the hot topics during the Brexit campaign and with the vote to leave, this effectively hands border control back to the UK. So it is likely there will be changes to the current rules on immigration but in reality, the actual impact will be totally dependent on the exit deal struck between the EU and the UK. We must bear in mind though that freedom of movement is a two sided coin and so Brexit also brings an end to UK citizens’ automatic right to move, work and live elsewhere in the EU.

The economic benefits of free movement of goods is likely to be something the UK will be keen to hold on to but it is also likely that the EU will look to maintain some form of free movement of people. This will be an important point for the negotiation as many employers rely on the right of EU citizens to move, live and work freely across the EU. So we will have to wait and see how we move forward around these important issues and I am sure everyone will be hoping to avoid a stalemate.

What now?
It is unlikely we shall see any real changes to UK employment law in the short term as we enter a period of uncertainty. Exit negotiations are likely to be lengthy and there is no real precedent to follow in these circumstances.

Everyone should be reassured that there does not seem to be any appetite for a total overhaul of UK employment law following Brexit and on the whole, UK and EU employment law principles seem to be fairly well aligned. So over the short to medium term, UK employment law may experience piecemeal change which will depend on the political orientation of the government of the day. Over the longer term it is hard to say how things will develop and the extent to which the EU shall continue to influence UK employment law will depend on the nature of the post Brexit relationship between the EU and the UK.

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