David Davis, Brexit Secretary (at the time of writing), has indicated that existing employment law would not be drastically changed following Brexit. He did this by blogging, “Empirical studies show that it is not employment regulation that stultifies economic growth… Britain has a relatively flexible workforce, and so long as employment law environment stays reasonably stable it should not be a problem for businesses and organisations. There is also a political or maybe sentimental point. The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding these people by taking away their rights.” This assertion notwithstanding, there are still concerns in many quarters that Britain’s exit from the European Union would pose a massive threat to employment laws. For now, though, there have been no changes as existing law still applies.
The effect of Brexit on employment laws can, however, be classified as “short term” and “long term”.
- A no-deal Brexit would mean there would be no allowance for a transition period, and businesses, organisations and public bodies would have to respond immediately to changes, except those who are already preparing for both no-deal Brexit and deal Brexit case scenarios.
- In preparation for a no-deal Brexit, the Government has issued a series of technical notices, including one on workers’ rights. Workers in the UK will continue to enjoy the rights they are currently entitled to under EU law. These unchanged rights include: rights to annual leave, holiday pay, maternity and paternity leave and rest breaks; Protection from discrimination and harassment based on age, disability, gender, sexual orientation, religion or belief, and race or ethnic origin; Protection of workers’ rights in a TUPE (Transfer of Undertakings (Protection of Employment) Regulations) transfer and Protection of part-time, agency and young workers among other rights. There are however 2 exceptions to this. These are: no new requests to set up European Works Councils in the UK can be made and the rights of UK/EU employees working in an EU country for a UK employer that becomes insolvent may be affected.
- Settlement Status. EU citizens living in the UK have been assured that they, along with their family members, will be able to stay and continue their lives with the same access to benefits, study, public services, and work that they currently enjoy. All resident EU citizens, however, have to take action to secure their immigration status after Brexit by applying for this stay.
- Since much of EU’s employment law has been brought into effect via UK legislation (the European Union (Withdrawal) Act 2018 converted EU law into UK law) and these will remain in force post-Brexit unless and until amended, and since the Government has already stated that there will no radical change to employment law after Brexit, things are likely to proceed as normal.
Despite the clarity of the short-term implications of Brexit, the long-term position for legislative change after Brexit is less clear. Future changes to employment legislation:
- There are likely to be new employment laws in the long-term. Theoretically, in a no-deal Brexit scenario, a sovereign Parliament would be able to scrap employment rights.
- A number of UK employment law does not stem from Europe, but from UK legislation. These include flexible working, redundancy pay, and detailed provisions on industrial action. That notwithstanding, employer associations and business groups have identified some likely targets as ripe for amendment. These include: agency worker protection which is the right of agency workers to the same working conditions (including pay and annual leave) as permanent staff after 12 weeks; limiting awards for discrimination – by introducing a cap, similar to that for unfair dismissal; TUPE – in particular, the need to provide more opportunities for transferee employers; holiday pay claims during sickness – the entitlement of workers on long-term sick leave to carry over unused holiday leave into the next year; and the exclusion of commission and overtime from holiday pay calculations; Collective redundancy consultation .
However, this is speculative.
- A new immigration Act: Immigration was a big talking point in the 2016 referendum, and some issues may be reflected in new immigration policy – which may, in turn, affect UK employment. These issues include:
- an end to free movement and preferential access for EU citizens to the UK’s labour market
- preferential treatment to be given high-skilled immigrants
- encouraging the British people to fill the vacancies that would be opened up in spaces that are currently largely filled by EU migrants. These are in areas like health care, hospitality, and social work.
- Certain exemptions from this emphasis on skilled workers – for example, a suggested seasonal scheme for agricultural and horticultural workers
Despite all of these, some quarters believe the effect of Brexit on employment laws wouldn’t hold much weight. Their assertion is based on many facts; some of which are:
- Many employment rights, including unfair dismissal and the minimum wage, do not, in fact, stem from the EU
- The UK provides protection which exceeds the EU minimum: prime examples being maternity leave and the right to 5.6 weeks’ holiday (as opposed to the EU four-week minimum).
Since Brexit is still at an impasse, no one knows the actual extent of effect this would have on employment laws. This is why employers have to stay up-to-date with developments. Our no win no fee Employment Solicitors can assist with all types of claims. Naturally, we pride ourselves on providing the best possible service to the highest standards, we offer free employment law advice on all problems. Call us on 0800 756 6605 or 020 3923 4777