Brexit: implications for employment law in the UK

Brexit: implications for employment law in the UK

British exit from the EU (Brexit) is fast becoming a realistic possibility.

On 20 February David Cameron set 23 June as the date for the referendum on the country’s membership of the European Union. The move immediately prompted government ministers to declare their backing for either the “Britain Stronger in Europe” or “Vote Leave” campaigns.

To date, the media’s focus has been on the political consequences of Brexit, while the profound ramifications for the law of the UK have had far less attention.Possible implications of a Brexit
A significant proportion of the UK’s employment law comes from the EU, including:

  • Discrimination rights
  • Collective Consultation obligations
  • Transfer of undertakings regulations (TUPE)
  • Family leave
  • Working Time Regulations, and
  • Duties to Agency Workers

If there is a vote to leave, the UK government could very well reverse all EU legislation and re-write it. However the government is unlikely to take this step and it is far more probable that EU law will continue to exercise a significant influence on UK law and policy even after a Brexit.

Disentangling the UK from its EU commitments will be a lengthy process. The UK is required to give two years’ notice of an intention to leave the EU. The government could then gradually revoke EU-derived employment laws, or, as is perhaps more likely, modify them to make them more palatable to UK businesses.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) is often criticised but the principle that employees in a transferred business or undertaking should transfer with it is arguably useful for businesses and it is unlikely that the government with abolish TUPE, although they could well make it more business friendly.

Discrimination The Equality Act 2010, which implements the UK’s laws against discrimination, is primary legislation, so would remain in force even if the legislation that incorporates EU law is revoked. Although the government could revoke the Equality Act after exiting the EU, to do so would be controversial.
Parental leave and pay Rights to parental and family-related leave in the UK are a mixture of rights stemming from the EU and rights originating in the UK. Indeed the right to shared parental leave and the right to request flexible working are purely domestic in origin so it is unlikely that these rights would be revoked.
Transfer of undertakings
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. This right is also now broadly accepted by most employers. For these reasons, a blanket repeal of the Working Time Regulations 1998 is unlikely.
Collective Redundancy Consultation Collective redundancy consultation obligations were reduced by the last government. The obligation is now not particularly onerous so it is not obvious what would happen to this obligation following a Brexit.
Agency Workers The Agency Workers Regulations 2010 are complex, unpopular with businesses and have not yet become embedded in a way that might make them politically difficult to remove.
Data Protection It seems unlikely that the UK would repeal or significantly modify the Data Protection Act 1998 if it leaves the EU.
Freedom of Movement There are currently large numbers of UK nationals living and working in other EU countries and many nationals of other EU member states living and working in the UK. Following a Brexit, these individuals would no longer have the automatic right to do this.

It would not seem to be in anyone’s interests to require them to return to their country of origin. It therefore seems likely that the UK government would agree an amnesty, whereby existing EU migrants could stay (at least for a reasonable period) in return for permission for UK citizens abroad to remain where they are.

The government is likely to take a piecemeal approach, keeping the majority of EU employment law but with minor modifications. Ultimately, even if the UK were to leave the EU, it seems unlikely that UK employment law would be transformed in significant ways, particularly in the short term.

If you would like to discuss this article further, please contact Jasmin Dhillon at jad@blasermills.co.uk or on 01494 478 671.