Formal notification of the UK’s intention to leave the EU was given on 29 March 2017.
Notification triggered Article 50 of the Treaty on European Union (TEU) under which the UK has two years to conclude a withdrawal agreement.
At the end of the two-year period on 29 March 2019 withdrawal takes effect, even if no agreement is reached.
As we rapidly approach that date, Mark Serby, director and head of employment law at Wake Smith, looks at the implications for employment law in the UK and Brexit.
“The European Union (Withdrawal) Act 2018 (EUWA) received Royal Assent in June 2018 and it ends the supremacy of EU law after exit day.
“There will be a conversion of EU law into UK law so that EU legislation continues to have a statutory framework in the UK after Brexit.
“This includes both EU-derived domestic legislation, EU legislation and treaties and the judgements of the Court of Justice of the European Union (ECJ) that apply immediately before Brexit.
“At some point after Brexit, each EU-inspired measure remaining in force as UK law will be reviewed as appropriate, and a decision will be taken as to whether to retain, modify or withdraw it.”
So what does the future UK-EU relationship in employment law look like and what is the impact on employment law generally?
Mark said: “The government proposes maintaining current UK employment laws so that existing workers’ rights are unchanged following exit day.
“A significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations in redundancies, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers.”
Mark said: “In theory, the UK government could repeal all EU-derived employment law following the end of the transitional period. However, the government is unlikely to take this step.
“It is far more likely to keep most employment law the same but gradually repeal some aspects, or (perhaps more likely) modify some laws to make them more palatable to UK businesses.”
Even if there was not a pre-existing UK right, would the government repeal such employment protection?
Mark said: “Much employment law, such as family leave, discrimination rights and even the right to paid holiday is regarded by both employers and employees as a good thing. Indeed, UK family leave rights go further than the EU requires.
“An even more compelling reason for the UK to continue to observe EU law is the need to stay in a relationship with the EU. The price of a trade agreement with the EU is likely to be adherence to a certain amount of EU employment and social protection.”
What changes might affect you and your family?
Discrimination law
The Equality Act 2010 implements the UK’s laws against discrimination and is primary legislation, so would remain in force even if the legislation that incorporates EU law (ECA 1972) is repealed.
Mark said: “Although the government could repeal the EqA 2010 after exiting the EU, to do so would be controversial. It is difficult to imagine many employers arguing that they should be free to discriminate on any of the protected grounds. Any change to the existing regime governing direct discrimination, indirect discrimination and harassment also seems unlikely.
“However, a cap could be imposed on discrimination compensation (as is the case for unfair dismissal).
“Another possibility is that the government could change the law to allow positive discrimination in favour of under-represented groups in a way that is not currently permissible under EU law.
Parental leave and pay
Rights to parental and family-related leave in the UK are a mixture of rights deriving from the EU and rights originating in the UK. UK maternity leave and pay preceded the EU rights and are more generous than those rights in some respects.
Mark said: “The relatively new right to shared parental leave and the right to request flexible working are purely domestic in origin.
“Accordingly, although some critics consider these rights to be a burden on business, there seems little political appetite for their repeal or even for watering them down.”
Transfer of undertakings
TUPE can attract a lot of negative press but the principle that employees in a transferred business or undertaking should transfer with it is often useful for businesses and is incorporated and priced into many commercial outsourcing agreements.
Mark said: “Although there may be some businesses that would like to get rid of TUPE, it seems likely that, following Brexit, the government would make small changes to make it more business friendly. For example, it might choose to make it easier to harmonise terms following a TUPE transfer.”
Holidays and working time
“The right to statutory paid holiday is now well established and it would be deeply unpopular with workers and trade unions if it was removed,” added Mark.
“However, it may be watered down. For example, the right to keep accruing holiday while on sick leave and the fact that holiday pay should be based on all aspects of remuneration, not just basic pay.
“Following Brexit, the government may want to retain a right to paid holiday based on basic pay and with limited rights to accrue and carry it over into new holiday years.
“The UK may also wish to remove the cap on maximum weekly working hours under the Working Time Regulations.”
Collective redundancy consultation
Collective redundancy consultation obligations were reduced by the last government.
Mark said: “The obligation is now not particularly onerous and trade unions are likely to fight any plan to remove it altogether.”
Agency workers
The most obvious candidate for complete revocation is the Agency Workers Regulations 2010 (SI 2010/93).
Mark added: “These are complex, unpopular with businesses and have not yet become embedded in a way that might make them politically difficult to remove.”
For further employment advice contact Mark Serby at [email protected] or on 0114 224 2048.
