My prediction: the pendulum is likely to shift away from protection in favour of workers, towards deregulation for businesses.
A week ago I was not expecting to be writing an article on Brexit and its implications in the workplace- the decision is a shock. This article, however, is apolitical.
Nevertheless, as an employment lawyer, I do have a view when it comes to advising businesses and individuals about what Brexit may mean to them. This article will therefore particularly appeal to employers, employees, HR professionals, business owners and anyone else who is interested to read more about the facts and less about the rhetoric.
Before I go any further – as will be very apparent from other blogs you may have read – there will not be an immediate change to UK employment laws, certainly for two years. Further, since David Cameron’s resignation and the current jostling in the cabinet for a new Prime Minister, any speculation about our future employment laws is further hampered by not knowing who will be leading us out of the EU – more of that later.
So what’s at stake?
The answer to this question is simply – a lot.
Many rights at work are influenced or shaped in one way or another by the EU (reinforced by penalties on Member States for non-compliance). Indeed, undoubtedly some in the ‘Leave’ campaign will have voted Brexit because of the strong influence that the EU has on domestic legislation and the desire to ‘get back control’.
Conversely, those who voted ‘Remain’ may have factored in the protection the EU injects into UK court cases. Take, for example, the recent case of Bear Scotland v Fulton  ICR 221 (a case on holiday pay and overtime). In that case the European Court of Justice (ECJ) intervened to ensure workers were granted equivalent rights intended by the Working Time Directive and, in turn, to ensure compliance with EU law.
The main rights derived, influenced or shaped by the EU include:
- ‘Family friendly’ rights
- Agency workers
- Part-time workers
- Fixed-term workers
- Health and safety protection
- Rights relating to working time
Which rights are vulnerable?
Firstly, in discrimination laws –a fundamental value of the EU- there is a school of thought (and certainly this is the view amongst my peers) that it is unlikely the protection, now given domestic effect by the Equality Act 2010, will disappear since it is recognised in society as a fundamental right and it would be a very brave (and arguably reckless) move to attempt to erode laws that seek to promote equality and diversity. Moreover, compliance in this area would undoubtedly be a prerequisite to any trading deals with other countries.
However, there are some rights that are vulnerable to being varied or repealed and this forecast stems back to when the rights were first introduced.
When the Agency Workers Regulations came into force, for example, they were met with some hostility from businesses and some readers may remember the suggestion that the government should not implement them (which, of course, would attract a sanction for non-compliance).
Similarly, the UK was not only very late to introduce the Working Time Regulations (WTR) in 1998 (some two years after the deadline) the Conservative party (the opposition party at the time) objected to their introduction and since then they have been under constant attack from the government. The WTR regulate working hours, rest breaks and holidays; if repealed employers could set their own hours, holidays and dictate when workers take rest breaks.
Insofar as health and safety laws are concerned, these have largely been well received as they have improved standards in the workplace. However, more recently, the protection has been eroded and if we follow this pattern through, this government is likely to continue the trend, particularly in the areas perceived to be a burden on businesses.
I mentioned earlier about the difficulty in predicting the effect on UK employment laws given Mr Cameron’s resignation (and yesterday Mr Johnson’s stance). This is because the question about whether legislation that originates from the EU will remain or go is less a legal question but more a political / socioeconomic one. For example, the recent white papers around deregulation, such as the Red Tape Challenge, suggested that UK businesses would be better off with less red tape and more flexibility. This ideology gives us a clue on the approach the future government may take.
In the short-term the status quo will be preserved; i.e. we will not see any changes in UK employment laws before 2017 (should Article 50 button be triggered at all). However, in the medium to long-term changes around working time and health and safety laws are likely to be the first to be subject to change. What the change will look like is difficult to quantify but do not be surprised if wholesale changes are made to the WTR.
In summary, my prediction is the pendulum is likely to shift away from protection in favour of workers, towards deregulation for businesses.