LEGAL
Brexit and UK employment law
Katie Ash (pictured), Director and Head of Employment Law at Banner Jones Solicitors, discusses the possible impact of Brexit on the UK’s employment law.
As the nation waits to discover what the Government’s strategy for leaving the EU will be, many employers are, unsurprisingly, concerned about what the future of employment law will look like. How quickly will it change? What will their obligations be? What steps will they need to take to ensure compliance? 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. It’s worth also 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
• Secondly - that many of the laws in question are actually seen as a positive by both employers and employees – family leave and paid holiday for example - and their rather conspicuous removal from contracts and terms of employment overnight might leave many feeling baffled
• Finally - come what may, few are of the opinion that the UK will cut all ties with the EU following the official leave process. We will likely need to have some sort of relationship and many believe the price of this will be 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 throw out the rule book and start again, or at least make some significant changes, one would be forgiven for asking how they would 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. Each piece of legislation would need to be assessed on its own merits, namely, how the law in question is 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. 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 Prime 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.
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‘What is clear across all aspects of business is that companies do not like uncertainty’
Another potentially thorny issue is that much of our employment law has been built up in case law which has been interpreted in accordance with EU employment law. This will remain binding after Brexit because it is part of how courts and
tribunals deal with employment law cases. What is clear across all aspects of business is that companies – large and
small – do not like uncertainty. With that in mind, the Government will not want to implement major changes 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 task of deciding what laws should stay. 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. An approach that will certainly make it easier for employers to adapt to and put into place in a post-Brexit employment law environment.
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