Brexit: How will Employment Law be Changed?

The public’s vote to leave the European Union is seen by many as a major threat to UK employment law, but will this event truly result in any major changes to UK workers’ rights? Might it even possibly enhance them?

David Davis, the B Secretary of State for Exiting the EU, has suggested that no extreme changes need be taken. Posting his stance on the website of Conservative Home, he says: “All the empirical studies show that it is not employment regulation that stultifies economic growth, but all the other market-related regulations, many of them wholly unnecessary”.

However, now that Britain is free of EU regulations, surely some alterations will at least be considered? Here are just some of the possible outcomes that new legislation could bring.

Rejecting EU laws
During the remain campaign it was stated time and again that the many UK employment laws that UK workers benefit from are an EU creation. However, a quick look at UK legal history shows that much of the recent valuable legislation has its origins in Britain’s Equality Act of 2010.

If a genuine effort was ever made to tear down these existing laws it would certainly result in considerable unrest from UK workers. The people are accustomed to certain rights and will not appreciate a sudden alteration that compromises where they stand legally.

Any government that removed current key areas of UK employment legislation, such as discrimination rights, constructive dismissal and working time regulations would prove very unpopular and risk losing a general election on the basis of this. A Britain of united workers is very much required for making Brexit work.

No major changes to existing law also means there will likely be no alteration to the law of the Court of Justice of the European Union (CJEU) and European Court of Justice (ECJ). This would effectively ensure that a subtle reinforcement of certain aspects that EU employment laws bring remains regardless of Brexit.

But what of any new laws that the EU adopts? Will the UK dismiss any changes that our neighbours take? Well, not necessarily, we can not and should not ignore European legal developments. It is far more likely that any new EU legislation passed in Brussels will just find much less support for implementation into British law and be considered with a much sharper eye than it otherwise would.

Preventing immigration
A major reason why Brexit came into existence was public concern over immigration. It is highly likely that the existing Freedom Of Movement law the EU incorporates will not continue to remain as part of British legality. This change will have major consequences for UK businesses that employ workers from around Europe.

Business owners need to stay aware of any upcoming laws that challenge migrant employment and know what consequences to expect if these new laws are not adhered to. EU workers who have been working in Britain for a considerable amount of time are likely to be granted permission to stay, but the hiring of new employees from the EU will most likely become part of a new system synonymous with the legislation of other non-EU countries, like the point-based migration system Australia uses.

Holiday allowance
One area of employment law that is highly likely to experience revision is holiday allowance rights. Current holiday allowance for UK workers is administered under the EU Working Time Directive, a piece of legislation that sets out clear details of the holiday permission an employee is entitled to in accordance with their contract.

Changes to holiday allowance has been observed by industry personnel. Frances O’Grady of the Trade Union Congress stated recently noted that the six million Trade Union members who have employment contracts that correspond with the Working Time Directive are the ones who will be most heavily affected.
The most probable holiday allowance alterations involve making changes to the means of calculating pay, along with amendments to the controversial existing legislation of 48-hour working week agreements.

However, changes to worker rights is likely to undergo compromise with the UK Unions every step of the way. Davis has noted the unfairness that swift changes could cause: “The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights.”

Transfer of undertakings
One area of employment law that has proved unpopular with UK businesses is the Transfer of Undertakings (Protection of Employment) Regulations 2006, commonly referred to as TUPE.

Since the introduction of TUPE in 1981, this legislation has been the primary means of protecting worker rights in scenarios where a transfer of undertakings or service provision alteration is prevalent, as outlined in the agreement of a worker’s contract.

Brexit has provided the government with the perfect opportunity to alter TUPE, and any changes made are likely to be implemented gradually to avoid employee upset. Moreover, because TUPE plays such a strong role in protecting workers, Unions will need to be vigilant at reconsigning when big businesses try to challene TUPE. Davis has noted that “Britain has a relatively flexible workforce, and so long as the employment law environment stays reasonably stable it should not be a problem for business.”

Exactly when changes to UK employment law will begin to be made is not yet clear, but Theresa May has already spoken of her intention to wait for better trade deals to be negotiated before Article 50, the formal name for leaving the EU, get enforced.