law


Brexit means Brexit?


A key event of 2016 was the historic Brexit vote. Shortly after the vote, while promising to make Brexit a success, Theresa May made it clear that Brexit meant Brexit. But as we are approaching March 2017, being the time when Article 50 will be triggered, Clive Dobbin of Paris Smith considers what Brexit will mean for employers?


The first point is that nothing is likely to change for the foreseeable future. Article 50 triggers a two-year period of negotiation. During this period, Britain will remain a full member of the EU, and will continue to be subject to its rules and regulations. Therefore nothing is likely to change, for example with regard to free movement of people, until March 2019. However, what changes can we expect after March 2019?


Immigration was a key issue in the Brexit campaign, and is likely to be an equally key issue in the negotiations. The phrase “regaining control of our borders” was often heard from the leave campaigners. The key challenge for Britain in the negotiations is how one can gain control over borders whilst at the same time remaining part of, or having access to, the single market.


Existing models (Switzerland or Norway) do not appear to assist, as whilst both allow access to the single market, both require, in return, free movement of people. Further, whilst other models, for example Turkey, do not require free movement of people, they do impose restrictions on the ability to enter free trade arrangements with other countries outside of the EU, and so would restrict the stated desire of the British Government to enter into agreements with countries around the world.


It therefore may be that the only way the British Government can limit immigration and gain control of its borders is to give up


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the hope of membership of, or access to, the single market.


Turning to employment law, much of British employment law either originates from, or has input from, EU law. Therefore there is the potential for wholesale changes to employment law after March 2019. However, the reality is likely to be much more modest.


It is, for example, unlikely that any Government would propose a wholesale watering down of discrimination law.


Further, one criticism of the British government is that, when implementing EU law, it gold plates the domestic legislation, going further than what is required. In certain areas, for example TUPE and the service provision change rules, this has certainly occurred. However, when the Government consulted previously about removing this gold plating, the response from employers was that they didn’t want it to be removed, as it did give a welcome degree of certainty.


Therefore any changes to employment law are likely to be more modest. Areas of change which could be considered by the Government include:


• A cap on discrimination awards (the Government tried to do this previously, but was told that it would not be permitted under EU law);


• Some relaxation of the consultation THE BUSINESS MAGAZINE – SOLENT & SOUTH COAST – FEBRUARY 2017


obligations under TUPE and for collective redundancies;


• An amendment to the definition of a week’s pay, including in particular the reversal of the decision that overtime needs to be included in the calculation of holiday pay.


The only thing which can be said at the moment with any certainty is that no major changes will occur until at least March 2019. However after that, what changes will be made to immigration law and employment law are much more uncertain. The answer for immigration law is likely to be a political one, and will be inextricably linked to the discussions on access to the single market. For employment law, changes are likely to be less significant than one might first envisage, but could still be important nevertheless (for example with regard to holiday pay).


Clive Dobbin 02380 482370


clive.dobbin@parissmith.co.uk


Clive Dobbin is partner and head of employment at Paris Smith and a member of the Law Society Brexit task force


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