The Impact of Brexit on Employment Law

by Amanda Hodgson


The decision to leave the European Union (EU) raises questions and concerns for both employers and employees in relation to how employment rights and legislation will be affected by this uncharted territory.

It should be noted that the European Union (Withdrawal Agreement) Act 2020 (WAA) has amended the provisions of the European Union (Withdrawal) Act 2018 (EUWA) to enable most EU Law to continue to apply in the UK during the transition period. The transition period is the time period allowed for a new relationship deal to be agreed with the EU. It is expected that the transitional period will last until 31 December 2020 however, this can be extended for a period of up to two years subject to any extension being signed off by 1 July 2020.

At the end of the transition period, the transitional agreements in the withdrawal agreement will come to an end, a new body of retained EU law will be created, and no deal statutory instruments will come into force by reference to the end of the transition period.

We will now consider the specific impact Brexit may have upon the following employment legislation:

Discrimination Law

Prior to the EU, the UK's discrimination laws contained protection against sex, race and disability discrimination. These rights were extended by the EU to include additional protections relating to age, religion/belief and sexual orientation.

UK discrimination laws are implemented by the Equality Act 2010 and as this is primary legislation, it will remain in force, even if the legislation that incorporates EU law (the European Communities Act 1972) is repealed.

It is possible that the Government may repeal the Equality Act 2010 following Brexit, but to do so would be quite controversial as this would leave employers open to freely discriminate against employees. It is therefore unlikely that there would be any change to the existing discrimination laws. However, it has been suggested that a cap may be introduced on discrimination compensation which is not currently allowed under EU law but again, this proposal is unlikely to receive positive feedback. Another possible proposal is that the Government may potentially change the law to allow positive discrimination in favour of under represented groups, which is not currently permissible under EU law.

Equality and Human Rights Law

The EUWA provides that the Charter of Fundamental Rights of the European Union (CFR), which enshrines certain social, political and economic rights for EU citizens and residents, will no longer be part of domestic law on or after Brexit day. However, the CFR is still likely to have an interpretative effect following Brexit. It should also be noted that the UK's membership of the European Court of Human Rights (ECHR) is unaffected by Brexit. The Government has pledged to remain a signatory to the ECHR while the process of withdrawing from the EU is underway.

Holidays and Working Time

Both holidays and working time are EU based rights. Although it is unlikely that there will be a wholesale repeal of the Working Time Regulations 1998 (WTR 1998), it is possible that a future Government may be keen to remove the opt-out provisions in relation to the 48 hour working week. The Government may also have a desire to reverse the current entitlement in relation to workers on long term sick or maternity leave who have the right to carry over unused holiday. However, it is unlikely that the basic holiday provisions will be a target, as the UK currently exceeds the EU minimum.

Agency Workers

The Agency Workers Regulations 2010 (SI 2010/93) (AWR 2010), which implement the EU Temporary Workers Directive 2008, may be seen as a possible target for completion revocation. This is an EU based right which provides that agency workers should have the same basic working conditions equivalent to permanent staff after 12 weeks. The rules are complex and unpopular with businesses and as they have not become deeply enshrined, they should not be politically difficult to remove.

However, the Government has not yet indicated the intention to revoke the regulations and have in fact, acted to the contrary, (following the Taylor Review of Modern Working Practices in 2017), by committing to strengthening agency workers' rights under the Agency Workers Regulations 2010 (AWR 2010). This would remove the 'Swedish derogation', which is a type of contract where agency workers give up their right to pay parity with comparable permanent staff, in return for a guarantee to receive a certain amount of pay when they have gaps between assignments.

Transfer of Undertakings TUPE

This is an EU based right and although this legislation is not popular with some businesses, who may prefer to see it revoked, it is more than likely that the Government will make small changes in order to make it more business friendly, such as making it easier to harmonise terms and conditions following a transfer, or the watering down of information and consultation rights.

It will clearly take up a substantial amount of parliamentary time to determine the extent of the legislation to be repealed or amended, with a possibility of some UK rights being weakened, but at this stage, there is no certainty as to exactly what changes will actually take place. The current position would indicate that there is unlikely to be a significant overhaul of UK employment legislation, but only time will tell and this may be influenced by whether the UK leaves with or without a deal.

 

For any further guidance or information on employment law post Brexit, please contact Amanda Hodgson.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

5 March, 2020
Related Insights

Articles & Media

Addiction and the Equality Act 2010

26 April, 2021

Articles & Media

What’s your status? Implications of the Uber judgment

18 March, 2021

Fletcher Day's excellent practice provides good quality, realistic and sensible advice, with particular expertise in the casual dining and retail sectors. - The Legal 500, 2019