Brexit – What might it mean for employment law?

Contrary to what some newspapers would have you believe, large parts of UK employment law do not have European origins. The right not to be unfairly dismissed is home grown, as are the national minimum wage and the right of trade unions to be recognised by employers if they can show a certain level of support in the workplace.

However large chunks of UK employment law do come from the EU: discrimination rights, the dreaded TUPE (which deals with business transfers), the Working Time Regulations and family leave all have EU origins. But would Brexit result in rights originating in EU legislation simply disappearing? We think not, for various reasons:

The legislation will still be there: the day after Brexit we will still have the Equality Act 2010 (which contains most of the UK’s discrimination law), TUPE, the Working Time Regulations and many other bits and pieces of legislation which have EU origins (in whole or part). The government will have to repeal the legislation for big changes to occur.

The politics of change: the much derided Working Time Regulations contain the right to 5.6 weeks’ holiday. Is any government going to legislate to do away with employees’ rights to paid holiday? Probably not. UK legislation already gives more holiday than EU law requires and there has been no suggestion since Labour lost power in 2010 that holiday rights might be trimmed. We’ll be more likely to see tinkering around the edges, for example in relation to how holiday pay should be calculated.

Society has moved on: it’s not easy to envisage any political party including a commitment to “make age discrimination legal” or “legalise sexual harassment” in its 2020 manifesto.

The UK’s new deal with Europe: it’s fairly clear that, whatever the outcome of the UK’s negotiations with the EU, the UK is not going to be able to “have its cake and eat it”. The UK’s deal with the EU after Brexit may well prevent a wholesale junking of employees’ rights.

So, overall, yes we think there will be change, but nowhere near as much as either Leave or Remain would have had us all believe before last Thursday’s vote.

Paul Evans
Partner, Workwise Legal
@WorkwiseNorth