I delivered a talk earlier this week on what Brexit would mean for employment laws. The issue is an important one for all employers and employees. There would be no immediate change, but if there was a vote to leave the EU, the consequences for employment laws deriving from Europe, of which there are very many, could be fundamental. For example, would TUPE, data protection, collective redundancy consultation, agency workers and discrimination provisions remain in their current form? And what would be the legal position of issues already decided following European court decisions? There is a great deal that remains unclear.
The likelihood is that the UK will seek to reach some form of agreement with the EU, but that may come at the price of agreeing to retain some or all of these provisions unamended, in which case some at least of the proposed advantages of Brexit may not arise at all. In the meantime, uncertainty of what the law will be in future will hold sway, adding to an already complex situation.
The latest opinion poll shows a 43/40 split in favour of remaining, but that is a fine margin, and one that can change. If there were to be a vote to leave, there would then be a process of up to two years (longer if all parties agree to extend it) during which the EU and UK would seek to agree terms of withdrawing. The detail of those terms is highly important, but would only be known if the vote was to leave. The model that might be used is similar to that of Norway, which is in the EEA, but as a condition of their joining the EEA agreed to apply most of EU employment law. If that model were to be followed, the changes may be minimal at best. Another possibility is very different, no agreement with the EU and moving towards an “Anglosphere” of English speaking countries including the US, Canada, Australia, India, and others from the Commonwealth. A further possibility is different again, Scotland having a second referendum and voting to leave the UK but rejoin the EU, which it may or may not be permitted to do. In the meantime the uncertainty that this all creates may harm inward investment within the UK.