The potential implications for employment law following the Brexit decision…
The decision on the UK’s membership of the European Union was confirmed on the 23 June 2016, in light of this we are taking a look at some possible employment law related implications.
The full transition to leave the Union is likely to take a period of at least 2 years, with the British government now having to negotiate a new trading relationship with the remaining 27 member states. Overall, the UK is likely to remain bound by some European employment laws because they have been enshrined in to our legislation, and it is unlikely to make any drastic changes in the short term.
We predict that the European led laws that are likely to remain include:
• Leaving the EU will not repeal TUPE, Britain would need to repeal this itself. TUPE is likely to remain as is as it now part of accepted employment protection and the UK gold plated this when introducing the “service provision change” in 2006.
• Consultation provisions (and a possible relaxation of the same).
It is possible that post-transfer harmonisation of terms and conditions will be allowed, which currently the UK cannot do due to European case law.
Possible areas that may see some change include:
• The UK’s current laws on collective consultation derive from an EU Directive.
• The current law is unpopular with employers and it is possible that steps will be taken to relax the consultation procedures, e.g. to increasing the current required number of employees (20) who are to be made redundant, to a higher threshold (i.e. 100) before the formal consultation process and HR1 is triggered.
Working Time Regulations
• Most of the Working Time Regulations are likely to remain.
• The UK’s position on paid holiday is unlikely to change, the UK increased/improved the European 4 weeks’ paid annual leave to the statutory 5.6 weeks in the UK.
• In respect of holiday pay, recent case law regarding the accrual of holiday during long-term sick leave could be altered.
• The definition of a ‘weeks’ pay’, which currently includes commission and overtime following ECJ rulings could be reduced back to the position it was a few years ago, with just basic salary being paid as holiday pay.
• Agency Worker Regulations
• These implement the EU Temporary Agency Workers Directive, which require employers to offer equal terms & benefits to agency workers once they have been working for 12 weeks.
• Due to the unpopularity of the regulations they could be repealed in time.
• The 2006 EU Equal Treatment Framework Directive currently binds the UK and as a result, the UK introduced protected characteristics, which included religion and belief.
• The UK introduced legislation to prohibit sex discrimination, race discrimination and disability discrimination (and others) well in advance of Europe requiring this.
• Changes to the protected characteristics in their current form are unlikely, however it may be possible that discrimination compensation will be capped (as unfair dismissal compensation is capped). As members of the EU this could not be done, however, as the UK has now decided to leave the Union, this is no longer the case.
Family Friendly laws (e.g. maternity, paternity and adoption rights)
• The UK already exceeds the EU rights in respect of family rights, e.g. the allowance of 52 weeks’ maternity and shared parental leave, as such changes here are unlikely.
We can only at this stage give an overview of what we think will be the likely implications of the Brexit decision, in the short term we do not believe there is any need to panic, and any change is not likely to occur for some time. We shall continue to provide updates on this area once there is clearer information available.