In light of Brexit, the current landscape of UK employment law is uncertain. Although it’s currently still business as usual, the decision to leave presents an opportunity to review the application of EU laws implemented in the UK. Some examples of legislation that may be subject to change are set out below:
The Agency Workers Regulations 2010
Under EU law, after 12 weeks of employment, agency workers are entitled to receive equal treatment to someone employed directly by an employer. This has proved to be unpopular with UK employers and the UK Government, and as such there may be a call for change/amendment once the UK exits the EU.
EU law sets out protective measures regarding redundancy, one of which is the obligation on the employer collectively to inform and consult affected employees if 20 or more redundancies are proposed in a 90-day period. There is a longer consultation period imposed if the number of affected employees is 100 or more. Although the consultation period for 100+ employees was halved by the UK Government, compulsory statutory consultation as a whole is still viewed as burdensome by most UK employers. Due to significant support from Trade Unions wholesale change is unlikely although we may see a dilution of the requirements of collective consultation and a shift to a more informative, less prescriptive exercise.
Discrimination and Family Rights
It is unlikely that “family friendly” legislation implemented by the EU will be subject to substantial change, given that (a) in some cases UK law has surpassed the EU minimum standard (for instance the recent introduction of shared parental leave) and (b) because it is difficult to see these policies, which are popular with employees simply being dismantled. The Equality Act 2010 (most of which is derived from EU law) provides protection against discrimination for employees with protected characteristics, such as sex, race, sexuality and disability, and are unlikely to face much change.
There may be potential for changes in relation to the amount of compensation a victim of discrimination can claim, which is currently uncapped under EU law. UK law may revert back to capping compensation in Tribunal claims, similar to the limits imposed on unfair dismissal claims. Commentators have further speculated that a qualifying period in relation to such claims may also be considered.
The Transfer of Undertakings (Protection 0f Employment) Regulations 2006 (As Amended) (“TUPE”)
TUPE derives from the 1977 EU Acquired Rights Directive. Accordingly, and through TUPE, EU law protects the employment contracts of people working in businesses that are transferred between owners. There is little call for change, although there are aspects of this legislation, for instance rules that prevent employers from changing contracts of employment even with agreement after a TUPE transfer which are viewed as putting unnecessary pressure on businesses. As such, we may see some changes in this area.
The Working Time Regulations 1998 (WTR)
The WTR, which derive entirely from EU law and give rights to paid holiday, are unlikely be susceptible to much change due to public and political consensus. The UK has ‘gold plated’ certain WTR laws however, so that the regulations on holiday and sick pay are vulnerable to change. The CJEU established that holiday pay should also include commission, a costly decision for employers. As such, the UK government may take the opportunity to restrict what constitutes holiday pay. Additionally the ruling that holiday pay will continue to accrue during sick leave and that sick leave will be carried over to subsequent leave years also “gold plates” EU law by going even further than is required by the WTR. It is therefore likely that post Brexit changes will be made, at least to clarify current judicial uncertainty.
Britain’s expected exit of the EU is unlikely to result in a radical overhaul of current employment legislation. Whilst the changes set out above are purely speculative, those laws that are seen as cumbersome and costly for a large proportion of UK employers may be subject to review and possibly change. Employers may need to communicate with, support and reassure their employees and should certainly protect their businesses by remaining informed on latest developments.