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Brexit – The End of UK Employment Law?

Brexit – The End of UK Employment Law?

On 9 March an article appeared in the Independent entitled “Why Brexit would be a disaster for your employment rights”  and opened with the statement that “Many of those who want the UK to leave the EU have one thing in mind – to take employment rights away from workers”.

The article went on to invite readers to “Imagine a country in which there is:

  • No statutory right to paid holiday
  • No legal limit on the number of hours employees can be required to work
  • No right to a daily rest period
  • No laws to prevent employers discriminating against workers who are disabled or who have particular religious beliefs
  • No right for employees to take time off work to look after a sick child.”

Pointing out that this was the situation before the Labour government was elected in 1997, the article went on the set out ways in which existing employment rights could be swept away.

So, what could happen to UK employment law if the referendum results in Brexit?

The starting point is that once the UK actually leaves the EU (which would be likely to take a couple of years after the referendum), the Government would regain sovereignty and would no longer be bound by EU legislation. As a result, it could repeal any existing legislation that had to reflect EU regulation, including (for example) discrimination laws.

However, there is obviously a big difference between what the Government could do and what it would do. It is worth remembering that:

  • Employees are voters so stripping away their rights wouldn’t be popular.
  • Many (if not most) democracies have regulations protecting employees and/or preventing discrimination, whistleblowing, etc.
  • The UK started introducing anti-discrimination laws before there was any EU requirement to do so, e.g. the 1970 Equal Pay Act, the 1975 Sex Discrimination Act and the 1976 Race Relations Act.

Therefore, regardless of which political party is in government, the idea that significant parts of the UK’s current employment law framework will be abolished is unrealistic. Core aspects such as unfair dismissal, discrimination, whistleblowing, collective redundancy consultation, TUPE and family-friendly rights may be tweaked, but employers hoping for more than that are likely to be disappointed.

So what regulation could be for the chop?

  • The Working Time Directive has long been “enemy number 1” for the Conservative Party so that could be the first thing to go if there is still a Tory government if/when the UK leaves the EU.
  • Other bêtes noires are the banking pay rules (especially the bonus cap) and the Agency Workers Regulations so these could quickly become extinct.
  • A more fundamental and widespread change could be to apply limits to the compensation for victims of discrimination. The current prohibition on capping compensation comes from EU law. Applying a cap would certainly change the landscape in the City.

All of this of course assumes that the UK would be able to negotiate trade agreements with the EU/EU countries that do not include an obligation on the UK to continue to abide by EU employment regulation. The jury is very much out on that issue.

So in summary, as some of our EU colleagues would say, plus ça change, plus c'est la même chose!