Businesses all over the UK are taking a deep breath as the outcome of the Brexit vote plays out. However, if anything has become clear, it is that nothing will happen very quickly. Experts believe that the length of time it will take to negotiate exit terms means that the real impact on employment law will not be decided before the next general election, in May 2020!
UK employment law is shaped by issues arising across the whole of Europe. However, while Brexit will mean that the UK is no longer directly affected by ECJ decisions, achieving a clean break will be by no means straightforward. Over the last 40 years, EU law has become thoroughly intertwined with UK law and uncoupling ourselves from EU employment law will be a long and complicated process.
Regardless of the trading model ultimately agreed, we are likely to still be bound by some of the European employment laws. The laws we will probably have to remain signed up to are likely to be the main social framework laws – especially working time.
Difficult as it is at present to predict anything, we’ve consulted our crystal ball and come up with the following likely Brexit decision outcomes affecting employers:
One big concern is the fate of thousands of existing EU workers. Many are likely to no longer qualify to work in the UK if the points-based system currently used for workers from outside the EU is applied.
The UK Government will need to quickly and comprehensively review the current points-based system to offer different criteria to employing EU nationals compared to non-EUs, in order to retain required talent.
If we have a Government that wishes to take the opportunity to repeal EU-derived employment protections, it is likely that any action will, at least initially, be focused on specific areas such as harmonisation of contracts following a TUPE transfer (and the calculation of holiday pay).
Other prime candidates for reform would be TUPE-related dismissals, and the ability to harmonise terms and conditions after a transfer.
Rights to holiday pay and its calculation are likely to be strong candidates for review and simplification.
A “week’s pay”, which currently includes commission and overtime following ECJ rulings, is likely to go back to the position it was a few years ago, with just basic salary being paid as holiday pay.
If this happens, it will be a welcome relief to many employers.
The UK’s current collective consultation laws stem from an EU Directive. These are unpopular with employers and are likely to be watered down, with for example, the requirement for collective consultation being potentially increased to when 100 or more (rather than 20 or more, as currently) are being made redundant However, it is unlikely that this will be a legislative priority.
Working Time Regulations
Much of the Working Time Regulations will probably remain. However, it is highly likely that the maximum average 48 hour working week will be abolished.
Agency Worker Regulations
These are very unpopular and unions are disinterested in them, so they will probably be repealed.
Protected characteristics were introduced as a result of the 2006 EU Equal Treatment Framework Directive, although the UK already had legislation in place that prohibited sex discrimination, race discrimination and disability discrimination (and others – known as ‘protected characteristics’). It is very unlikely that any of the protected characteristics will be removed. However, discrimination compensation may be capped (similar to the capping of compensation for unfair dismissal).
Family Friendly Rights
It is thought unlikely there will be any reductions to family friendly rights, as we actually exceed EU rights.
Other employment rights
Some employment rights, such as the right to join a trade union, are protected by the UK’s status as a signatory to the European Convention on Human Rights, rather than by its membership of the EU.
Obviously, quite honestly no-one knows what impact the decision to leave the EU will have on anything right now and in the near future, and that includes the impact on the legal framework of employment. Like other aspects of business life, meanwhile the best advice is to do just as the header says – keep calm and carry on as you were – and assume no changes until you hear otherwise from a definitive source.
Su Allen HR helps employers by providing a range of HR support. This includes advice on how to handle difficult situations, providing clear written communication including contracts of employment and policies, which ensure fairness and consistency in all aspects of managing employees, and providing coaching and training where required. Contact us on 01582 883299 (or email to firstname.lastname@example.org) if you’d like to hear more.
Su Allen HR