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LEAVING THE EU – What now for UK Employment Laws?

July 2016

Numerous UK employment laws are linked to the EU for example, working time, discrimination rights, TUPE and agency workers rights. A UK government outside of the EU could re-write these laws. To do so though would require a political mandate. Would such a mandate be given or even sought?

Consider:

    A number of UK employment laws have been ahead of the EU e.g. equal pay, race and disability discrimination laws. There was a UK right of return from maternity leave before EU maternity leave rights were implemented.
    Do the UK voters (whether employee, worker, union members or employer focused) want to remove the employment laws led by the EU e.g. the right to paid holiday? In fact some UK interpretations of the EU laws go further, e.g. family leave rights, the number of potential holiday days per annum, and what constitutes a TUPE transfer.
    During the 2 year notice period to exit the EU one of the concessions that may need to be made by the UK to secure EU trade agreements could be that the UK continues to adhere to the EU employment and social protections already in place.

So what laws might be subject to change?

    The Agency Workers Regulations 2010 have not been popular with business. As a fairly recent addition to the UK employment law protections they may be viewed as less sacrosanct to the UK voters.
    TUPE may become less “gold plated” as currently viewed in some quarters, making it easier to harmonise terms and conditions of employment. The express definition of a service provision change may be up for removal.
    Holiday pay calculations may be clarified to eliminate the potential employer headache of whether, and if so how, to include commission, bonus, or overtime payments within the holiday payment made to an employee when they are on holiday. The right to keep accruing holiday pay while on long term sick leave could also be addressed.
    Equality Laws, would it be beneficial to have a financial compensation cap in discrimination claims similar to dismissal claims? Would it be helpful to have greater freedom to positively discriminate for under-represented groups?
    The 48 hour working week? The UK has currently retained its option for employees to voluntarily opt out of the 48 hour working week. Would removing it entirely therefore be of benefit?

And what may stay the same?

    The Equality Act 2010, which implements the UK's laws against discrimination, is primary legislation, so would remain in force even if the legislation that incorporates EU law (the European Communities Act 1972) is repealed. Would a government repeal the Equality Act? It is difficult to imagine many employers arguing that they should be free to discriminate on any of the protected grounds.
    The right to statutory paid holiday is now well established and it would be deeply unpopular with workers and trade unions if it was removed. There is unlikely to be a political mandate to repeal this.

What about Immigration?

There are currently large numbers of UK nationals living and working in other EU countries and many nationals of other EU member states living and working in the UK. Nothing has changed at present, but unless agreed otherwise following  the formal “Brexit”, these individuals would no longer have the automatic right to do this.

It would not seem to be in anyone's interests (whether the individuals', their employers' or the national governments') to require them to return to their country of origin. It therefore seems likely that a UK government would agree some sort of amnesty, whereby existing EU migrants could stay (at least for a reasonable period) in return for permission for UK citizens abroad to remain where they are. In the medium term, these individuals could be given sufficient time to obtain citizenship of the country in which they are residing and to return home if they fail to do so.

For the future outside of the EU the UK could introduce an immigration system similar to the current system for non-EU citizens, whereby skilled workers and students can gain permission to stay for a limited period. However UK businesses and institutions may have issues if they are banned from recruiting labour they are used to accessing from the EU. It is also unknown at present if the UK can even negotiate a trade agreement with the EU without agreeing to the free movement of persons.

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