On 19 February 2016 the Government announced that UK citizens will be able to vote on whether the UK should remain a member of the European Union (EU). The vote will take place on 23 June 2016. Pam Sidhu, Head of Employment at The Wilkes Partnership, considers the implications of the vote on UK employment laws.
Will Brexit mean less employment protections?
The Trade Union Congress (TUC) is concerned that many workers’ rights protected by EU law may come under attack if the British people vote to leave the EU, in what many are terming a “Brexit”.
Although a significant proportion of the UK’s employment law comes from the EU, some EU legislation merely subsumes protections that were already provided by UK law. However, if the UK did vote to leave the EU the Government could, in theory, repeal the legislation incorporating EU law, and theoretically remove some of the added protection that EU law has introduced for workers.
Pam Sidhu comments: “Some employment rights granted to workers in the UK are actually more favourable than the equivalent rights conferred by EU law, for example maternity and certain other family friendly rights. These seem likely to stay regardless of a Brexit. Certain rights like the right to claim unfair dismissal and statutory redundancy pay are pure “English” rights.
“It seems unlikely that the Government would be so controversial as to completely remove many employment protections currently in place, although a Brexit could mean that there would be scope for the Government to make changes to limit the scope of some of the protections, if it wished to do so”.
Pam Sidhu discusses the possible implications of a Brexit in relation to different areas of employment law:
Discrimination: the UK already had sex, race, equal pay and disability discrimination laws, but the EU extended their scope. Some commentators have suggested that the Government may consider placing a cap on the compensation available in discrimination claims, similar to the cap in place for unfair dismissal claims. (Currently compensation for discrimination is uncapped.)
Transfer of Undertaking Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) give workers quite far reaching protections where businesses/services are sold or outsourced. Although many businesses may prefer to remove TUPE altogether, it seems more likely following a Brexit that the Government may amend TUPE to make it easier for businesses to harmonise employment terms following a TUPE transfer.
Family Leave: the current provisions relating to maternity and paternity leave are a mixture between UK and EU law. Although some consider these provisions to be a burden on businesses, it is unlikely that the Government would repeal or reduce the rights currently in place.
Working Time Regulations: these rights were introduced when the Working Time Directive was implemented in the UK in 1998. Although many employers now accept the reduction to the maximum working week, if the Government did repeal or reduce any of the protections afforded to workers, the trade unions would no doubt strongly oppose such moves. It has been suggested that the Government could consider removing the cap on the number of working hours in the week if a Brexit goes ahead. Interestingly, the right to statutory paid holiday is greater under UK law (5.6 weeks) than provided for under EU law (four weeks). So, this aspect is unlikely to change.
Agency Workers: the Agency Workers Regulations 2011 resulted in a pay rise and improved holiday entitlements for some agency workers. It appears that this would be the most obvious area for complete revocation as the changes made under EU law were not popular with many businesses and have not become entrenched in the same way as other EU legislation.
Freedom of Movement: if the UK were to vote for a Brexit, UK nationals living and working in other EU countries (and vice versa) would no longer benefit from having the automatic right to do this. It would be unlikely that such people would have to immediately return to their country of origin, however in the longer term that may be the case.
Should the UK vote in favour of a Brexit, a two year notice period is required prior to the UK being able to officially leave the EU, so any potential changes are unlikely to made before 2018 at the earliest.
To discuss anything arising from this update, please contact Pam Sidhu or any member of the Employment Team on 0121 233 4333.