BREXIT – Here’s the Employment Law Implications
The choice is made, the people have spoken – it’s Brexit! Many employers and employees want to know what the likely changes will be to employment law now that Britain is leaving the European Union.
It’s going to take a few years for Britain to extricate itself from Europe but once this happens, in theory, the Government could rip up all of the current employment law and start again un-hampered by the so-called “bureaucrats in Brussels”. Of course, this is extremely improbable and the consequences are likely to be far less dramatic.
The trade unions would have you believe there will be a serious erosion of employment rights. They have identified those rights at greatest risk as maternity rights, holiday pay, protection against age discrimination and protections for agency workers. The Government has seriously curtailed employment rights in recent years by introducing employment tribunal fees and increasing the length of service required to bring an unfair dismissal claim from one year to two. This has resulted in a dramatic falling off of tribunal claims. Len McClusky (leader of the union Unite) perhaps understandably says this is an indication of what may happen if the Government is given free-rein over all employment matters.
But is this really the case? In some areas, the Government has improved rights of workers without any requirement to do so by the EU. For example, rights to shared parental leave and to make flexible working requests are both inventions of British governments, the former introduced by this Conservative government and the latter significantly improved upon by it.
Brexiteers have consistently said that the EU unnecessarily hampers business (and, indeed, workers). Without those constraints, the argument goes, Britain could pick and choose its immigrant workforce. Rather than having to take any European into Britain looking for work who wishes to come, it could turn the tap of the immigration workforce on and off as it pleases and make the criteria bespoke to its needs (much as Australia does). Businesses could welcome highly skilled workers from around the world who currently find it difficult to move to Britain (e.g. doctors and engineers from India, China and Australia) whilst limiting the numbers of unskilled immigrants to those actually required. However, this assumes we do not become a member of the European Economic Area (which allows free trade but it comes with the free movement of people).
Over-complex and restrictive (to business) employment legislation could be reined in on leaving the EU. For example, discrimination laws could be tempered by putting a cap on unlimited (and potentially business crippling) tribunal awards. Business sales and take-overs could be made easier by making the transfer of undertakings (TUPE) legislation less restricting and opaque. Likewise, it would no longer be bound by the European Court’s judgments that occasionally overrule the UK Courts. It is argued that decisions which frustrate employers most, such as the recent inclusion of overtime/ commission in holiday pay, the entitlement to sick pay where an employee is ill on holiday (rather than lose holiday) and the right to keep accruing holiday while on sick leave could be a thing of the past.
But what is the reality? Is there likely to be a huge change?
It is unlikely we will see wholesale changes. The reality is that many of the EU laws were already provided for by the UK. For example, race discrimination, maternity leave and equal pay all preceded EU rights. It would be a bold and brave Government to row back considerably on these historical protections, and potentially risky in electoral terms for it to do so.
It is more likely that we will see some minor changes to employment law and these changes may, on the whole, favour employers rather than employees. In practice the Government could use the opportunity to tidy up some legislation that has been confused by European Court decisions which have caused uncertainty for employers and employees alike (and often result in expensive and unnecessary litigation). Likewise, it could attempt to simplify some of the more complex and clunky EU driven legislation. I say ‘attempt’ because in the past such efforts have often led to further complications.
All of that said, I suspect the Government is going to be quite busy over the next 5 years dealing with more pressing matters than employment law.
