Brexit three months on: what now for Employment Law?
It’s now three months since the referendum and most people remember what they were doing on that Friday when the news broke that the Leave campaign had been successful.
The result created huge uncertainty across the country and there were all sorts of political, economic and social implications to think about.
Nobody knew all the answers on that Friday morning. Three months down the line, there’s still great uncertainty.
In reality nothing has happened because, as we all know, Article 50 has not been invoked.
The two-year period allowed for the withdrawal to be implemented has not even begun. The negotiations about the terms of the withdrawal don’t seem to have started either.
However, many employers, HR professionals and employment law practitioners have wondered how Brexit is going to affect employment law in the UK where the influence of Europe has undoubtedly been a significant feature.
Is that all going to change? Is anything going to change?
First, it’s worth looking at how Europe affects us now.
As part and parcel of being a member of the European community, the UK has to implement European Directives, which it might not otherwise have enacted or even considered had it been left up to our Westminster parliament.
It starts with a European Union ‘Directive’. This requires member states to enact in each of their own countries law which reflects the aims and objectives of the Directive.
There’s usually a little bit of leeway allowed on the exact rules. There’s also a timetable for member states to get their domestic legislation in place to implement the Directive.
If a member state doesn’t do so then various proceedings can be brought to force them to comply.
What you have then, and of course this is in line with the general understanding of the situation of the public at large, is law in the UK that we might not have were it not for our membership of the European Union. Put simply, we have no choice.
However, it follows on from that if we leave the European Union then there will be nothing to stop Westminster repealing the relevant legislation.
Which legislation could be affected?
Discrimination law, now wholly embodied within the Equality Act 2010, is a prime example of law that could be weakened considerably without the constraints of the EU.
But it’s difficult to imagine this happening as a general sweeping change.
It has been suggested that ways in which a future government might tweak the law might include a cap on discrimination compensation similar to that that applies for unfair dismissal.
The Working Time Regulations 1998 is another example of EU derived law in that it implemented the original Working Time Directive.
This covers various areas and it may well be that some are more likely to be changed than others.
The right to paid holiday, for example, is now very well established and it’s difficult to see any Government removing this.
Indeed, it has to be said paid leave as a concept is neither the invention of nor a burden from the EU – the UK had a Holiday Pay Act as far back as 1938.
What might be more vulnerable are aspects of the WTR that create wide-scale annoyance amongst employers. Such as where individuals keep accruing holiday pay while on sick leave or the fact that holiday pay needs to reflect more than basic pay.
It’s widely considered that the prime candidate for complete striking off the law books is the Agency Workers Regulations 2010, which are complicated and unpopular.
It also has to be said that the UK more than any other EU state has a culture of using agency workers and an interest in getting rid of legislation which might interfere with that.
TUPE might be an area where there is a possibility of change. Our TUPE Regulations, originally introduced in 1998, arose out of the Acquired Rights Directive.
In some circles they’re seen as a bar to commercial initiatives, such as in situations where they apply to businesses that are being put into some form of insolvency, such as administration rather than outright liquidation.
Many of the rights EU employment laws brought with them are ones that were already provided by UK law.
Even if they were not, many others have become so ingrained in public consciousness and understanding that it would be very difficult to remove them.
Also – and this is absolutely critical – the UK still needs to do a deal with the EU about future trade.
That means they’re probably going to find themselves in a situation that many other non-EU states find themselves in. They’ve accept various aspects of the EU membership anyway – even though we are no longer members – that’s part of the price of playing the game.
Why would other member states make it easy for us if they think our abandonment of EU style workers' protection gives us an advantage over them?
And, on an even wider level, the question of what Westminster will do when it is no longer bound by Europe depends of course on who is in Westminster wielding power.
In every area you might consider the approach a Conservative Government might take, free of the shackles of Europe, is very different to the one that a Labour Government might take. Particularly a Labour Government led by Jeremy Corbyn.
A couple of weeks back in the House of Commons, Grimsby MP Melanie Onn asked business minister Margot James whether she could “guarantee that all employment protections currently enjoyed by British workers will be maintained post-Brexit.”
The minister, whilst saying “employment protections are an absolute priority for this Government”, didn’t really answer the question.
But we can probably guess the answer.
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