Whilst the papers tell us to panic and the politicians speak of a potential apocalypse, the general view is that there will likely be very little immediate change to employment law should we vote to leave the EU on 23 June 2016.
Though many of our employment rights emanate from the EU and could, in theory, be repealed, some of those core rights are generally viewed positively by both employees and businesses and would not appear ripe for wholesale repeal. That said, the possibility of erosion of some other workers' rights and repeal of some protections cannot be discounted as detailed in a recent report commissioned by the TUC.
At the very least it is not unlikely that there would be some "tinkering" of current legislation that has proven unpopular with some businesses in the UK, reducing workers' rights in the process. For example, taking some of our legislation which derives from European directives:
- If a company wishes to make 20 or more employees redundant at one establishment within 90 days, the rules on "collective information and consultation" are triggered and can be time-consuming for business. However, if we were to leave the EU, the UK would be free to lessen the burden for employers (perhaps by raising this threshold to, for example, 100 employees, or by shortening the time periods which must elapse before redundancies can be made).
- Similarly, employers are currently restricted by the Working Time Regulations which limit the working week to a maximum of 48 hours absent an effective opt out. This has long been a sore point for the UK Government and so a Brexit would pave the way to raise or even abolish this limit.
- Under the TUPE Regulations (which govern the movement of employees if a business is sold or service outsourced) there are limits on changing an employee's contract after they have moved across to the new business, allowing employees to keep their original employment terms in many circumstances. The Government may well remove or soften this restriction following a Brexit to allow the terms and conditions of new employees to be harmonised with the existing terms of the buyer's employees. Movement to abolish these regulations would be welcomed by employers, though certainly not by trade unions.
Traditionally, our Government has not had the best track record in protecting workers' rights. Take, for example, the right to paid holiday. Prior to 1997 there was no statutory right to paid annual leave; however this changed with the introduction of the Working Time Regulations 1998 which created the statutory right to four weeks' annual leave. The UK Government was so opposed to this directive that it went to the European Court of Justice to attempt to get it annulled (United Kingdom v Council of the European Union).
European employment law sets a minimum not a ceiling for our employment rights. Therefore, without these minimum standards set by Europe there is room for a shift away from laws such as those above which protect employees in the long term. UK employment law has always been subject to the political will and sensibilities of the government in power at any one time; be that a desire to strip back trade union power or aiming to increase family friendly rights. Removing the ultimate checks and balances of European law will provide freedom for the Government to set its own legislative agenda on workers' rights which might well be to the detriment of the average employee.