Brexit: implications for employment law in the UK

Whilst there is still huge uncertainty surrounding the UK’s withdrawal from the European Union, in March 2018, the UK Government and the EU reached political agreement on the terms of a post Brexit transition period. This would run from 30th March 2019 until 31st December 2020. During this transition period, most EU law would continue to apply to the UK.

A large proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations on redundancy, transfer of undertakings (relating to sales of businesses), family leave, working time regulations and duties to agency workers.

Impact of Brexit on Key Employment Legislation

Discrimination law

Our discrimination law is largely contained within the Equality Act 2010 and although the government could repeal this legislation, to do so would be extremely controversial. It is inconceivable to imagine many employers arguing that they should be free to discriminate on any of the protected grounds or characteristics. A possible change to the law could be the imposition of a cap on the financial compensation for discrimination which is currently unlimited. This would bring it into line with the rules for compensation for unfair dismissal.

Parental leave and pay

These rights are a mixture of rights deriving from the EU and rights originating in the UK. UK maternity leave and pay preceded the EU rights and are more generous than those rights in some respects. The relatively new right to shared parental leave and the right to request flexible working are purely domestic and apply to the UK only. It is extremely unlikely that these would be changed.

Transfer of Undertakings (TUPE)

TUPE can attract a lot of negative press but the principle that employees in a transferred business or part of a business should transfer with it is often useful for businesses and is incorporated and priced into many commercial agreements. Whilst there are many who would like to get rid of TUPE, it seems more likely that following Brexit, the government would make small changes to make it more business friendly. For example it may choose to make it easier to harmonise terms and conditions following a TUPE transfer.

Holidays and working time

The right to paid holiday is now so well established that it would be almost impossible to remove. The Working Time Regulations are also established in UK law and these are unlikely to be amended. However one aspect of holiday pay which is unpopular with UK businesses is the right to keep accruing holiday whilst on sick leave and this may be examined. Following Brexit, the government may also want to retain a right to paid holiday based on basic pay with limited rights to carry over into new holiday years.

Collective redundancy consultation

The obligation to consult where a number of redundancies are proposed is now well established although the consultation periods were reduced more recently. It is possible that these could be watered down further or abolished particularly as many employees arguably do not feel particularly strong about the right to be consulted over a particular time period. Works councils and transnational works councils are possible candidates for removal but the obligations imposed by them on UK businesses are relatively light.

Agency workers

The Agency Workers Regulations which implement EU law might be seen as a possible candidate for complete abolition as they are complex, unpopular with businesses and have not yet become embedded in a way that might make them politically difficult to remove.

What is clear is that there will be no impact upon the well-established laws regarding unfair dismissal such as the current 2 year qualifying period.

To discuss any concerns regarding employment law, please call Paul Grindley on 0113 320 5000 or email paulg@winstonsolicitors.co.uk