As the political process which will see the United Kingdom leave the European Union accelerates, there is still very little certainty as to the practical consequences that “Brexit” will create in a number of areas of law. This is certainly the case in respect of UK employment law, which is shaped significantly by legislation imposed by our membership of the EU.
Even a cursory glance at the more heavily relied upon UK employment law rights will confirm just how significant the EU is in terms of our domestic legislation, with the following areas all being directly affected:
- Discrimination laws (The Equality Act 2010);
- Working time rights, including entitlement to annual leave (The Working Time Regulations 1998);
- Collective consultation obligations in mass redundancy situations (The Trade Union and Labour Relations (Consolidation) Act 1992; and
- Employment protections on the sale or transfer of a business (The Transfer of Undertaking (Protection of Employment) Regulations 2006.
Another area the media have focussed on as a consequence of Brexit which will also have serious implications in the employment field is that of the loss of freedom of movement of EU citizens.
The big unknown at this stage is what will the post-Brexit employment law landscape look like in the UK and what steps should employers be taking to prepare for this?
Whilst it is still very early days in terms of the legislative change Brexit will require, our view is that in the majority of cases, the practical obligations which employers require to fulfil in the employment relationship are (with one exception) unlikely to change to any material extent. There are a number of reasons which support our view that the basic principles of those employment laws governed by the EU will undergo any real alteration:
- A number of the laws shaped by EU Directives, were previously in place within the UK, albeit in slightly modified forms. For example, prior to our membership of the (as then was) European Economic Community, the UK already had legislation in place which made it unlawful to discriminate in the workplace on the basis of sex and race, in addition to the UK having introduced the Equal Pay Act in 1970. As such, the UK had already committed to providing such protections prior to joining the European community and given the fundamental importance of such rights in modern society, it would seem unthinkable that any government would seek to withdraw these protections in the future, even when not compelled to by the EU.
- EU legislation only requires EU member states to introduce certain minimum rights. In respect of a number of laws introduced on a domestic level, successive UK governments have elected to “gold plate” those EU laws by introducing enhanced rights for UK workers. One example of this is in respect of minimum entitlement to annual leave. The EU Working Time Directive only require that employers provide their workers with a minimum of 4 weeks holiday each year; UK legislation ensures that UK workers have a minimum right to take 5.6 weeks annual leave. Given the initiative taken on a purely domestic level to provide workers with more beneficial working conditions and rights for employees, again it would seem unlikely that the UK will remove the basic EU rights post-Brexit.
- The status quo is a powerful thing. The very fact that UK workers have benefitted from rights provided by EU legislation for many years will have created a certain expectation as to what basic working conditions are acceptable. That position will inevitably be safeguarded by trade unions and other employee rights groups so as to make it extremely difficult for any government to even attempt to withdraw these.
As such, there is not likely to be any immediate or seismic change to workers’ rights and employers’ obligations in the immediate aftermath of Brexit, which should provide some degree of certainty when it is inevitable many aspects of business life is going to be severely impacted.
The one obvious exception to this arises from the Prime Minister’s clear commitment to a “hard Brexit” and a complete withdrawal from the single market and freedom of movement of EU citizens. Those employers who have a reliance on foreign EU nationals to ensure the success of their business are going to have an anxious wait to see exactly what immigration laws and rules are introduced once we leave the EU. Immigration will be, at that stage, a purely domestic issue. Immigration always inspires heated political debate and with the various political parties holding polar opposite views, the future in this area is hugely uncertain. That is the case even without getting into the complicated question of what right EU foreign nationals who are presently entitled to live and work in the UK will have to remain.
Much has still to be decided and we can only hope that the political process ensures that the employment laws of post Brexit Britain are laid out in good time to allow employers and workers to prepare themselves for any changes. What is clear is that until two years after the date on which the government formally triggers Article 50, the UK will remain a member state of the EU and it will be business as usual, from an employment law perspective at least.
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