The UK is scheduled to leave the European Union on 29th March 2019. Currently, most employment contracts incorporate a fair amount of EU based law such as the Working Time Regulations, and holiday, and sickness and absence procedures. Should employers rush to redraft their contracts in readiness for next March? Here is a very quick look at what I am speculating might change post-Brexit.
The Position at the Moment Pre-Brexit
As I write this blog piece, nothing has changed. We have not left the EU yet and so the law remains the same.
What Changes are Likely to Happen?
Post-Brexit, our relationship going forward may require us to accept and/or retain some EU legislation, for example, free movement of workers. Ironically, this is probably the most controversial of all of the EU based employment laws and – in my personal opinion – the one we are most likely to retain at least in some format.
A lot will depend on the deal which the Prime Minister makes. Once we know this we will have more idea of what will and will not change.
How Quickly will Changes Happen?
The UK is unlikely to rescind existing law immediately post-Brexit. Allowing for the fact that there will almost certainly be a ‘handover period’ the fact is that a large amount of what we tend to think of as EU given rights have in fact already been incorporated into into UK law. For example,
With regard to Maternity Leave, UK legalisation goes much further than the EU required minimum of 14 weeks. The UK allows women a 52 week period of leave. Bulgaria is only country to be more generous with 58 weeks of leave.
Can UK Law be Changed after March?
As these laws already exist, the only way they could be rescinded is with Parliament’s approval, and it would be up to the government of the day to decide whether or not to try and do that. There is also an argument that UK workers have come to expect a certain level of protection at work, and it would be problematic to try and change this.
What about Agency and Temporary Workers?
Here the position going forward is perhaps less clear. Agency workers are currently entitled to the same basic working conditions as their permanent staff equivalents after 12 weeks. For example, the right to be paid the same wages. This is unpopular with both employers and agencies who supply temporary staff as they argue it nullifies any benefit to using casual workers. As such, this could change post-Brexit.
On the other side of the political divide, however, the argument may be that casual staff already have very limited protection and we should in fact be legislating to increase – not decrease – their rights post-Brexit.
What Other Changes might we See?
Other notable pieces of legislation which are EU based include
In relation to part-time workers, the people who are most vulnerable to any change in the law are usually are usually women (as working mothers make up large numbers of the part-time workforce). These workers will still be protected via discrimination laws which are UK based.
With regard to holidays, the UK again goes further than the EU required minimum by allowing for 5.6 days holiday a year, as opposed to the EU’s 4 weeks.
EU based law, however, allows holiday to be carried over in the case of long term sick employees or those on maternity leave. Also, at the moment, both overtime and commission must be included when calculating an employee’s holiday pay entitlement. Post-Brexit, it is possible we may see a change to this. .
David Davis ex-Brexit Secretary wrote on his blog that,
“it is not employment regulation that stultifies economic growth, but all the other market-related regulations, many of them wholly unnecessary. Britain has a relatively flexible workforce, and so long as the employment law environment stays reasonably stable it should not be a problem for business.
…. The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights.”.
This indicated that Davis, and presumably the government at the time of his writing, had no desire to change things. But Davis is now gone, and it remains to be seen what Dominic Raab will do.
What about Employment Tribunals – will we see any changes there?
It is a given that the EAT will not longer refer matters up to the European Court of Justice, nor is it likely to be bound by any new cases decided there. What remains to be seen is how the court deals with precedents relating to, for example, holiday pay, which the ECJ has set.
So, Where Does this Leave Us?
At the time of writing, things are still very up in the air. We can only speculate that the government next March will accept that there needs to a period of adjustment and not be in a hurry to change to much too quickly. Certainly, the CIPD has indicated its feeling that there should not be a rush to make unnecessary and unwanted changes to what is, arguably, a good mix of employer freedom and worker protection.
What do you think? Do you agree with me that we are likely to retain freedom of movement for workers?
Do you think that post Brexit should be moving more towards the American model of minimum workforce regulatory, or should be try and retain our EU based protections?