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  • Overview

    The Trades Union Congress has commissioned a 66 page report, prepared by Michael Ford QC, reviewing the potential impact of Brexit. The following summarises his findings:

    1. The areas of pay and dismissal are excluded from the scope of EU law and will not be directly impacted by Brexit. Areas such as the National Minimum Wage//Living Wage and the laws on unfair and wrongful dismissal would remain unchanged in the event of Brexit.
    2. Many employee rights at work derive from EU law and could theoretically be repealed in the event of Brexit. These include:
    • Anti-discrimination rights e.g. disability rights, which covers discrimination at all stages of employment, including selection;
    • Pregnant workers rights including rights to maternity and parental leave;
    • Working time rights including rights to daily rest, limits to weekly working hours, paid annual leave and measures protecting night workers;
    • Agency workers rights;
    • Rights to collective consultation e.g. in the context of collective redundancies and transfers of employees between businesses; and
    • Health and safety rights.

    Whether the above rights would be cancelled by a future government is not however guaranteed. Indeed the UK government has often enacted legislation which gives a higher level of protection to workers than is normally required under EU law. By the same token, a government committed to deregulation in the employment sphere would be unrestrained from doing so, post-Brexit.

    Although the UK has signed up to international treaties which protect some of the above rights, their protections are comparatively weak.

    Other than pregnant workers’ rights, Mr. Ford believes all the above areas would be vulnerable to attack in some form or the other, be it wholesale in the case of health and safety legislation, or on a selective basis in the case of anti-discrimination legislation, where there is less political consensus, e.g. in the area of age discrimination.

    3. Under EU legislation, sanctions for breach of EU law must be adequate and a genuine deterrent. A Brexit would free a government from these constraints, allowing it to introduce caps on compensation or other measures to limit the practical enforcement of rights.

    It can be concluded from Mr. Ford’s report that while Brexit would leave a large body of employment law susceptible to repeal, whether this would happen in practice ultimately depends on the legislative agenda of the government of the day.

    If you would like any further information, please contact Susanna Gilmartin, Partner in the Employment team at Thomson Snell & Passmore, on 01322 422540.

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