Many of the employment law protections that come from European Union (EU) law are firmly embedded in the UK's legal and ideological framework. Laws protecting against unlawful discrimination are just one example of this.
However, there are some aspects of EU law that are not as intrinsically linked with the UK system as others, and it is these laws that may be more likely to change once the so-called ‘Brexit’ process is complete.
There is, understandably, a lot of anxiety and uncertainty surrounding the impact of the Brexit decision on the UK labour and employment market.
The UK Government, under the leadership of Prime Minister Theresa May, now has the task of negotiating our exit from the EU. The process is likely to take at least two years and so it is unlikely that any changes will happen quickly.
The result of the Government's negotiations will be vital, and depending on how we go forwards we may remain bound by some of the EU legislation.
EU countries may be unwilling to enter into agreements with the UK if we were able to undercut them by allowing businesses to employ people on less stringent terms than those that currently apply to member states.
Therefore, it is likely that the UK will remain signed up to a number of EU laws, especially those that are reflective of acceptable standards of good employee relations practice.
However, there may be an option to review those elements of EU legislation that are unpopular, for example, elements of the working time directive.
In many instances the UK Government had already legislated to protect employee rights prior to the implementation of EU legislation and so this is unlikely to change.
If the UK does have full freedom to repeal EU legislation, there are many ways in which this could affect both employers and employees. Here is a list of some key examples.
WORKING TIME DIRECTIVE AND PAID HOLIDAY
Generally, under EU law it is illegal to force an employee to work for an average of more than 48 hours a week. Employers aged 18 and above can ‘opt-out’ of the 48-hour week, but they must agree to do so and this is often contained as a clause within a contract of employment.
This directive also ensures all workers are entitled to 20 days of paid annual leave – increased by the British government to 28 days of paid annual leave – and a 20-minute rest break if the working day is longer than six hours. It includes further regulations for young workers, overtime and night working.
Exit from the EU could prompt the Government to repeal these regulations, particularly more costly aspects such as rules relating to holiday while on sick leave.
TEMPORARY AGENCY WORKERS DIRECTIVE
This gives workers hired through employment agencies the same pay and conditions as permanent employees after 12 continuous weeks in a job. These include paid annual leave and a minimum wage salary.
When the regulations were introduced in 2010, the use of agency staff became more costly, burdensome and less attractive for businesses, meaning it could be on the Government's review list.
TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) – TUPE
Currently if an organisation or service transfers its employees to a new employer it must preserve their rights in accordance with these regulations. For example, the employee will retain their original terms and conditions of employment.
The Government might choose to rethink this EU-derived law, which protects employees but can frustrate employers.
COLLECTIVE REDUNDANCY CONSULTATION
Employers are obliged to collectively inform and consult employees if 20 or more redundancies are proposed in a 90-day period. While it is unlikely to be removed altogether, the Government may seek to relax the rules.
IMMIGRATION
Currently, EU nationals have an automatic and unrestricted right to work in the UK. The Government has confirmed that EU nationals who are permanent residents in the UK will be allowed to stay in the country after Brexit.
But the rights of other nationals will be subject to the terms negotiated with other member states and parliamentary decisions.
The Government may also impose restrictions on the number of workers entering the country in the future and do away with free movement of labour agreements.
DISCRIMINATION
The 2006 EU Equal Treatment Framework Directive has affected all UK legislation that protects against discrimination, such as disability, race or religion.
It is unlikely the Government would seek to change these, and the UK had already legislated to prohibit sex discrimination, race discrimination and disability discrimination prior to its adoption.
There have, however, been calls for discrimination compensation to be capped. Previously, this has not been possible as our membership of the EU forbade it. Employment experts have also suggested MPs might seek to change age discrimination regulations.
CHILDREN'S RIGHTS
Children's rights campaigners warn that Brexit will lead to demise in protection for children. EU laws and policies affect children in countless ways, from making sure toys are safe, to combating child sexual abuse and exploitation, and from paediatric drug development to trafficking.
Children's Rights Alliance for England director Louise King has pointed out that the Government's progress in implementing the UN Convention on the Rights of the Child has been slow, and that without pressure from the EU, advances in this area may weaken.
HEALTH AND SAFETY
The EU dictates much of the UK's laws on health and safety. However, the Health and Safety at Work Act, passed into UK law in 1974, just after the UK joined the EU, and has little to do with European legislation.
Therefore health and safety experts do not expect any fundamental changes in this area. Some predict the Government may simplify regulations or introduce more sector-specific laws in the future.
REGULATIONS PROTECTING PREGNANT WORKERS AND PARENTS
The EU Pregnant Workers Directive, introduced in 1992, led to changes in UK law, such as ensuring women had the right to take paid time off work for antenatal appointments.
It also placed duties on employers to assess health and safety risks specific to pregnant workers and new mothers in the workplace, and prohibited the dismissal of pregnant workers or mothers on maternity leave. Another EU directive on parental leave gives parents of young children the right to take up to 18 weeks leave to care for a child.
Employment lawyers do not expect the Government to roll back such family-friendly legislation. UK maternity leave exceeds the minimum requirements under EU law, and the Government's direction of travel in recent years has been to extend such laws.
Examples of this include its introduction of shared parental leave and the extension of right to request flexible working arrangements to all employees, which both came into force in 2014.
PROTECTION OF PART-TIME AND FIXED-TERM WORKERS
These EU-derived rights mean part-time and fixed-term workers are entitled to the same rights as permanent employees, such as pay, bonuses, pensions and maternity and paternity benefits.
Some employment lawyers suggest these rules are in no danger of being repealed as they have become part of UK working life.
However, the Trade Unions Congress has warned that protections for workers who are not full-time and not part of the permanent workforce are particularly vulnerable to repeal.
NEXT STEPS
1. If you are concerned about the impact of Brexit on a particular piece of legislation, make sure to keep up to speed with developments in the news.
2. If you are concerned that you may not be compliant with a piece of legislation if and when it changes, seek legal advice.
3. If there are particular legal issues arising from Brexit you feel will have negative implications for the early years sector, write to your MP/the press/a lobbying organisation to ensure future change happens in a positive way.
4. Equally, there may be positive outcomes of Brexit that could benefit your business.
5. Don’t forget to keep staff informed of any changes as they happen.
As told to Gabriella Jozwiak
