In light of the significant influence of migration to the outcome of the EU referendum, before considering potential employment law implications, of even greater concern for employers is the likely impact of Brexit upon the free movement of workers.
In theory, on exit, citizens of other Member States will no longer enjoy an automatic right to travel to and work in the UK (and vice versa). However, as discussed in our Making Sense of Brexit briefing, migration and free movement of people is linked to the Brexit model that is adopted. It would seem that free movement of people would be a significant bargaining issue for the EU if the UK is to continue enjoying the benefits of free trade in goods and services.
Depending upon how hard a line a UK Government will adopt, going forward we know already that the ultimate ambition would be the introduction of some form of points-based immigration system, along the lines of that applying currently to non-EU nationals. However, we expect existing EU workers to be allowed to remain in the UK. Thereafter, employers can expect some changes to the pool of workers entering the country, and are likely to face greater bureaucracy and visa applications in recruitment. What happens during the negotiation period is interesting. In theory, free movement of people should continue up to the point of exit meaning that employers can expect more workers to arrive during this period. However, Vote Leave said in the campaign that it wanted to introduce an Asylum and Immigration Control bill to end the automatic right of all EU citizens to enter the UK as soon as possible. This would, however, place the UK in breach of its international obligations. As for UK employment law, whilst, in principle, the vote to leave the EU could precipitate workplace change and the rolling back of some EU employment laws, the likelihood of major change is small. We say this for three key reasons:
- Over our years of EU membership, so many EU laws have been entrenched into our workplaces, if not our psyches, and would be difficult to change.
- It remains to be seen just how much free rein a UK Government will have to effect change. After all, at the same time, the UK will be negotiating an entirely new relationship with the EU and will inevitably come under pressure to retain various current EU requirements.
- The make-up of a UK Government in two years’ time is uncertain and, therefore, its political agenda in terms of employment law reform.
As a result, we anticipate a much slower evolution of UK employment law than may arise in other areas. Even so, a future more reformist and deregulation-focused leadership, may well look to curb some of the more restrictive practices associated with laws originating from the EU; for example, by lifting the prohibition on changing employee terms on a business transfer (under TUPE), or resolving the issue of holiday pay, which has taken up so much court time in recent years. Employers can expect a reasonable run up to any such changes in any event and, quite possibly, an opportunity to have their say through a consultation process.