Brexit: Implications for employment law

Kimberley WallaceI have a confession to make. Though I included a ‘novel and brief paragraph’ about the possible impacts of Brexit when I wrote my article for the last e-bulletin (an employment law update), I didn’t actually think it was going to happen!

So now, instead of getting angry at someone (the older generation, people living outside of Scotland or London), or standing down from my role (as I hear is the recent trend for those under the Brexit spotlight), I will give this ‘novel and brief paragraph’ the attention now required to give you a better insight into the potential impact of Brexit upon UK employment law.

Why does Brexit affect employment law at all? Well a large amount of our employment law is derived from European directives, for example The Working Time Directive 1998, TUPE Regulations 2014, The Equality Act 2010 etc. And these pieces of law influence just about every aspect of employment including working hours and rest breaks, maternity and parental rights, annual leave, agency worker rights, and equality at work.

Now we’re coming out of the EU could we just scrap all these EU derived laws? Technically the UK could repeal any such laws. However, repatriation of employment law powers to the UK will not be immediate and repealing, reviewing and establishing new laws could take a few years. These established employment rights have become standards and expectations of today’s workforce.

Could you imagine how unpopular the Government would be if they tried to take away employee rights such as maternity leave or equal pay? In negotiating a trade agreement, and if we were to join the European Economic Area, the UK would have to comply with EU social and employment laws anyway. Its therefore unlikely there will be significant changes to employment law.

Are any laws likely to be repealed?
This is purely speculation, but businesses may push the Government for a review and tweak of some of the more traditionally unpopular legislation to make them more flexible, such as:

  • Transfer of Undertakings Protection of Employment (2006); the one which limits the amendment of transferring employees’ terms and conditions and offers enhanced protection. The Government may want to reduce these restrictions but would still need to ensure fair process is followed.
  • Agency Workers Regulations (2010); the one where employees must provide agency staff with the same core terms and conditions as directly employed staff after 12 weeks.
  • The Working Time Directive (1998); the one with restrictions around total working hours and rest breaks. The Government might choose to scrap the 48-hour average working time limit, and seek to restrict the types of recent claims where holiday pay has included commission/overtime.

Immigration will surely be impacted?
Changes to immigration can be expected but while the UK remains in the EU, EU laws continue to apply, so there is unlikely to be any immediate change. Free movement of workers will be a key factor in the exit negotiations. HAs may wish to consider longer term if recruitment may be challenging with possible future restrictions on immigration, with a potentially smaller resource pool leading to higher wages. Employees who have been in the UK exercising treaty rights for at least five years’ can apply for permanent residency to confirm their status. For those with under five years residency, it is likely transition arrangements will be put in place to allow continued employment.

In summary, some potentially small employment law changes can be predicted, but the finer details of what will change and when, will be dependent upon the UK’s exit negotiations with the EU.

Altair provides HR and Organisational Excellence consultancy services for housing sector clients across the UK and Ireland.

Kimberley Wallace is an HR Consultant at Altair, you can contact her on 07585 954 218 | kimberley.wallace@nullaltairltd.co.uk.