19-07-2017

The impact of Brexit on the UK’s Employment Law

After all, a huge amount of the UK’s employment law comes from the EU – from discrimination laws and rights in collective consultation situations, through to working time, transfers of undertakings and family leave rights to name just a few.

Will the UK government simply tear up these laws as part of the ‘leave’ process?

In a nutshell, the answer is most likely to be no. The Prime Minister confirmed at the Conservative Party Conference in October that there would be a Great Repeal Bill which would annul the European Communities Act 1972(ECA) (the Act which took the UK into the EU) and give Parliament the power to absorb parts of EU legislation in to UK law and scrap elements it does not want to keep. And although no one really knows for certain what the future holds, here Banner Jones’ employment law expert Katie Ash talks to us about why a major overhaul is unlikely to take place.

Firstly, notwithstanding the statement made by the Prime Minister about the Great Repeal Bill, it’s worth bearing in mind a few fundamentals when it comes to the current employment legislation governing our land.

  • Firstly, the fact that some EU laws are made up of rights and protections that were already embedded in UK law long before we became part of the EU. Good examples of this include equal pay and race and disability discrimination, all of which were in place here before they were made an EU staple.
  • Secondly, that many of the laws in question are actually seen as a ‘positive’ by both employers and employees – take family leave and paid holiday, for example - and their rather conspicuous removal from contracts and terms of employment overnight might leave many feeling a little baffled (and even wondering whether they’re in the right country and role for them!).
  • Finally, come what may few are of the opinion that the UK will cut all ties with the EU following the fruition of the official leave process. We will likely need to have some sort of relationship, and many commentators believe that the price of this will be a requirement to maintain a certain standard of compliance with EU employment law – as is currently the case with Norway.

Practically speaking, implementing fundamental changes to the laws by which we are governed would be a huge undertaking, and even if the Government did decide to simply throw out the rule book and start again, or at least make some significant changes, one would be forgiven for asking how they would even go about it!

A broad brush, one size fits all approach here simply won’t cut the mustard. There are too many factors to take into consideration.

First things first, each piece of legislation would need to be assessed on its own merits – namely, how is the law in question incorporated in to UK law. There are a number of possibilities.

Whereas some laws are made under an Act of Parliament - the Equality Act 2010 (outlawing discrimination) being a well-known example - others are incorporated in to law as a result of being introduced by government ministers under powers given to them by the ECA.

Now, whereas laws implemented as part of the ECA would be repealed on mass should the ECA as a whole be ‘thrown out’ under the Great Repeal Bill as we are led to believe by the Prim Minister - including the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which protects employees when there is a transfer of a business – every single Act passed by Parliament would need to repealed individually.

Another potentially thorny issue that will need to be addressed is the fact that much of our employment law has been built up in case law which has been interpreted in accordance with EU employment law. This case law will remain binding after Brexit as a because it is part of how courts and tribunals deal with employment law cases and it is unclear how UK courts may approach future cases where case law exists based on EU principles and law when they are no longer bound by EU law and EU courts which led to the decisions in the first place.

What is clear across all aspects of business is that companies – large or small – do not like uncertainty. And with that in mind, the Government will not want to implement major changes come ‘day one’ of Brexit, and the Great Repeal Bill gives the Government the power to incorporate all EU law into UK law on day one of the exit. They can then set about the arduous task of deciding what laws should stay, what should go and what should be tweaked.

Cost implications aside, business leaders will not want to deal with a tranche of changes all at once, and so it is likely that any changes that do eventually filter through will be done on a piecemeal basis over a period of time; and it is likely that they would result in slightly modified versions of EU employment law rather than whole scale repeals of existing legislation. An approach that will certainly make it easier for employers to adapt to and put into place in a post-Brexit employment law environment.

 

If I employ migrant workers do I need to do anything with immediate effect?

 

No. For the time being the UK remains part of the EU and free movement continues to apply. Any decision not to give employment to an individual because of uncertainty about their immigration status will amount to race discrimination.

 

I thought leaving the EU would cut some of the red tape making employment law less onerous. Is that not going to be the case?

 

It’s unlikely to be the case given the commitment to incorporate all EU law on day one of exit under a Great Repeal Bill. If any changes are made they are unlikely to be to immediate, dramatic or whole scale changes.