Employment law after Brexit

01 Mar 2017

The UK has already implemented all relevant EU Directives into UK Regulations, which will remain binding in the event of Brexit unless repealed or amended by parliament.

There has been much speculation as to which elements of UK employment law that are based on European rights may be ‘watered down’ to reduce the regulation on businesses. No one yet knows what will happen, but some suggestions are:

  • Many commentators believe that TUPE (Transfer of Undertakings (Protection of Employment) Regulations) is now an accepted part of employment protection, although some adjustment may be proposed. For example, post-transfer harmonisation of terms is an aspect of TUPE which causes particular headaches for employers and might be subject to review. Some of the consultation requirements in respect of both TUPE and redundancy rules are also very unpopular with employers, and these could now be diluted.

  • We predict that it is highly likely that the “social framework” laws will largely remain in place. The UK already exceeds the European rules regarding family friendly rights such as maternity leave, and at this stage no dilution of these seems likely. In Theresa May’s first speech as PM she said From the introduction of same-sex marriage, to taking people on low wages out of income tax altogether; David Cameron has led a one-nation government, and it is in that spirit that I also plan to lead”.

  • The basic framework of the Working Time Regulations (WTR) is likely to remain in place, for example, the right to paid holidays, given that UK legislation already exceeds the European minimum in this regard. However, some controversial and unwieldy aspects of the WTR (such as the right to accrue holiday during long-term sick leave, and the entitlement to commission and overtime payments as part of holiday pay) could well be revisited.

  • Agency workers are currently entitled to the same terms and benefits as permanent employees once they have been working for 12 weeks, pursuant to the EU Temporary Workers Directive. Employers have been unhappy about this and these rules may be reviewed.

  • Individuals have the right not to be discriminated against on grounds of “protected characteristics” pursuant to the Equality Act 2010 and most commentators are confident that this will remain enshrined in UK law. There was a proposal a few years ago to cap the compensation awarded to successful discrimination claimants, which did not get taken forward in part because the UK’s membership of the EU did not permit it. It has been suggested that this could raise its head again in view of Brexit.

  • In terms of timing, the Prime Minister has repeated her commitment to implement Article 50 by the end of March 2017. After Article 50 is triggered, the process of withdrawal should then be completed within 2 years and once Britain has left the EU the process of repealing any regulations or legislation derived from EU law is likely to take place gradually over some years, so it will be some time before we see any major changes.

 

Additional information