With the IN/OUT referendum looming, the possibility of a “Brexit” is more present than ever.
What would the implications of a “Brexit” be for UK employment law?
EU law pervades practically every area of UK employment law. It could potentially all be revoked, but this is highly unlikely: many of our employment rights started in the UK, and many go further than the EU minimum; furthermore, a pre-condition of any trade deal is likely to be a level playing field, which would in turn require the UK to introduce a degree of parity of social and employment rights with our EU trading partners. Government is also unlikely to want to deluge businesses with changes.
Freedom of movement of EU citizens.
Immigration will undoubtedly be one of the most contentious aspects of Brexit. It is extremely unlikely that any forced repatriation will occur. Similarly, when it comes to EU citizens coming into the UK, there will be stiff resistance both from businesses wishing to retain the ability to recruit flexibly, and from the EU if there is to be a trade deal with them.
These are generally more generous in the UK than on the continent. Shared parental leave is purely UK in origin. However much some employers may dislike these rules, parental rights are unlikely to change on Brexit.
There are some holiday-related EU edicts that a post-Brexit UK may wish to do away with, such as payment for holiday while sick and in respect of lost commission. Any further changes would be extremely unpopular, heavily resisted and probably politically unfeasible.
The Equality Act 2010 does not depend on EU law and will continue in force unless repealed. As a repeal would effectively mean giving permission to discriminate, this would probably not be politically feasible. However, if there is a Brexit, the government may play around with the edges of the discrimination rules, for instance with positive discrimination and the level of awards.
The automatic transfer principle has its pros and cons, and businesses are now quite used to dealing with the issues in their contract documents. This mixed impact makes it likely that TUPE will remain relatively unscathed by a Brexit, although, again, there may be some playing around at the edges.
UK laws are already ‘light touch’ when it comes to redundancy consultation, so these rules are unlikely to change. Rules around works councils and information and consultation with employees more generally may be high on the list for removal, however.
The Agency Workers Regulations 2010 have never really taken off as a popular measure, so would be a good target for removal
As the UK will want to continue trading with the EU, we are highly likely to have to comply with the ‘safe harbour’ rules relating to the transfer of data between countries, meaning probably no change here.
Case law generally.
UK cases which have been decided on the basis of EU law will remain binding, but only to the extent that the facts of any post-Brexit case cannot be legally ‘distinguished’ from them. The big question that will need to be answered by the courts will therefore be: does the fact that EU law no longer applies mean that the facts of the post-Brexit case are different so that the old EU based decisions do not apply? Unlikely, probably, but you never know.