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  • Overview

    The EU’s role in defining rights for workers was cited often in the run-up to the June referendum. It is natural therefore to query what change Brexit will bring to employment law. The Prime Minister has pledged that “workers’ legal rights will continue to be guaranteed in law”; this suggests that nothing is likely to change immediately. Adjustments may occur over time though. 

    What will not change?

    Much UK employment law pre-dates equivalent EU legislation or has been enacted in UK statutes, meaning it will not disappear upon Brexit. Dilution of these rights is unlikely, considering the inevitable backlash.

    Law that will not change with our departure:

    Discrimination law. The Equality Act 2010 is primary UK legislation and will be unaffected by Brexit. Of course, after the UK has left the EU, the government can change the provisions of the Act. It is extremely unlikely that any move would be made to allow workplace discrimination though. Some suggest the only change likely is the insertion of a cap on the compensation award available in discrimination claims.
    Parental leave and pay. The right to maternity leave and pay was present in the UK before the EU rights and are more generous. This makes it improbable that Brexit will lead to repeal or reduction of the rights.

    What could change?

    Some employment law was not present before the EU and has not been imported into domestic law. It is likely that the majority of these rights will be enacted as UK legislation before Brexit. However, changes may be made to them.

    Law that may be changed post Brexit:

    Transfer of Undertakings. Although often criticised, the principle of employees transferring with a business enshrined in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) is often key in mergers and outsourcing agreements. Technically, TUPE will cease to apply upon Brexit. However, the government will almost certainly transport its function into domestic law. Its more unpopular elements may be altered though. For instance, variation of transferred employees’ contracts may be made easier.
    Working time. The core provisions of the Working Time Regulations will almost certainly be retained. Some elements may be changed though. The right to accrue holiday pay whilst off sick may be removed along with the right for holiday pay to be based on all earnings instead of basic pay. Maximum weekly working-hours may also face the chop.
    Agency workers. The Agency Workers Regulations 2010, which give agency workers the same rights as other employees, are liable to be axed completely. They have proved unpopular and are not a part of UK law.

    The future

    Brexit could produce significant shifts in the UK employment sphere. If free movement of workers to the UK ceases, employers may struggle to find the employees they need and face greater headaches with right-to-work checks. We do not yet know what type of Brexit we face. A departure agreement could enforce the maintenance of free movement of workers and EU employment rights.

    Currently, the European Court of Justice guides the interpretation of relevant legislation. Post Brexit, the role it will play is unclear. Different judicial interpretations of employment could result. Also, it will be open to parliament to enact new employment law, without fear of contravening EU rules.

    In summary, significant employment law change is unlikely in the short term; in the long term though, it may emerge. Employers will need to keep on top of this. There is no better way to achieve this than Thomson Snell & Passmore’s Annual fixed price advice and support telephone line. It provides the opportunity to call any time and have your query answered for a fixed annual fee. Find out more at: http://www.ts-p.co.uk/for-business/employment

     

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