The impact of Brexit on UK’s employment law.

by Hudson Mckenzie Lawyers and Solicitors who understand you

Few portions of UK law can feature a level of European influence as considerable as employment law. Legislation emerging from the European Union has arguably become the top source of UK employee protection legislation over the last fifteen to twenty years.

Discrimination and family leave rights, working time guideline, protection for atypical workers, health and safety in the workplace and the privileges of employees on the transfer of a business are just a trickle of employment laws which are formed in some way by the laws of the EU.

Whilst EU legislation has by no means been the only driver behind the development of employment laws over recent times, politicians who campaigned for the UK's exit from the EU cited EU-derived laws as intrusive to UK workplace relations and unnecessary red tape for British business. Irrespective of whether this view is justified or not, there is likely to be an impact on employment law and employment lawyers in London on the UK's exit from the EU.

It is highly improbable that any UK government (of any political persuasion) would seek to fully repeal (or even substantially repeal) existing employment laws which implement EU minimum requirements. This is for some or all of the below reasons:

Much of the employment protection which flows from Europe reflects accepted standards of good employee relations practices. In this regard, they can almost be considered fundamental rights rather than administrative rules which employers have to comply with. The right for employers not to discriminate against staff on the grounds of a protected characteristic (e.g. race, gender, and age) is an obvious example of this. To highlight this point, one only has to look at non-European countries that embody similar protections to understand that such rights are considered so fundamental to developed societies that the UK government will not, in reality, have a choice about whether to keep existing laws in largely their current form. By way of interesting illustration, the US whose labor laws could, on the whole, be considered as offering a low level of protection for employees, has had some form of unlawful age discrimination since well before unlawful age discrimination became part of UK law in 2006.

Some fundamental employment laws of the EU merely supplement rights which were already embodied in UK law before the EU chose to legislate in that particular area. UK equal pay rights and disability discrimination are two such examples. Given this, it is difficult to see why and how any UK government would legislate to substantially alter the current framework on our exit from the EU. As a related point, modern UK employment law is technical and detailed and is already a compliance challenge for employers. In the absence of compelling political pressure, it is doubtful that the UK government would want to increase the burden on employers and create more confusion in the short term by making significant changes to the basic structure of the current legislative framework.

In some areas, UK employment law and employment lawyers in London go further than that required by EU legislation. For example, UK statutory minimum holiday entitlement currently sits at 28 days (inclusive of public holidays) per year for a full time employee whilst the EU Working Time Directive 2003/88/EC requires Member States to implement domestic legislation providing for a minimum of only 20 days annual leave. In a similar way, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) goes further than its EU originating legislation, the Acquired Rights Directive 2001/23/EC, by bringing service provision changes expressly within the ambit of the Regulations.

Finally and perhaps most importantly, it is the case that, following our exit from the EU, the UK will still seek and need to maintain strong trading relations with Europe. As with other areas such as data protection, the UK will need to demonstrate that it has minimum employment protections in place in order to make it a viable trading partner for other European Member States. Where employment law is concerned, there is a further specific consideration to take note of in the event that the UK chooses to follow a Norwegian type model post Brexit by becoming a member the EEA. As part of the current rules of the EEA, the UK would remain subject to most of the key aspects of EU employment law in any event, those being TUPE, collective redundancies consultation, working time, and the protection afforded by Directive 2008/104/EC on temporary agency work. In this scenario, the status quo seems inevitable.