Potential Impact of Brexit on UK Employment Rights
21 March 2017
EU law has been incorporated into UK law in different ways, such as secondary legislation under the European Communities Act 1972, Transfer of Undertakings (TUPE) and through standalone acts of Parliament like the Equality Act 2010.
The ramifications of Brexit and Article 50 means that the UK can potentially amend these laws, repeal them, or keep them. Technically, once we leave the EU in 2019 the UK is no longer bound by any decisions made by the European Courts of Justice (ECJ) and EU law.
How Would this Affect You as an Employee?
There are quite a few employment rights in the UK that have been taken from EU Law.
Firstly in respect of individual rights, the law protects employees in a number of ways, from working time regulations, annual holidays, rights for women, family-friendly policies, anti-discrimination legislation to ‘atypical’ workers.
An atypical worker is a worker who does not fall into the full-time employee category, for example part-time workers, home workers or flexi-hour workers.
Secondly in respect of collective rights, the law offer employees protection in the form of collective redundancies, Transfer of Undertakings (Protection of Employment) Regulations (TUPE), European Works Councils, information and consultation.
What UK Employment Laws May Change?
Pregnancy and Maternity
UK laws relating to pregnancy and maternity are a mix of both EU and UK based rights. UK rights go further than the EU minimum, for example providing 52 weeks’ maternity leave as opposed to the EU minimum of 14 weeks.
What might happen? As a result of Brexit, the current entitlement of workers on maternity leave to carry-over unused holiday entitlement to another leave year could be removed.
Parental leave is an EU-based right providing up to 18 weeks’ unpaid parental leave for each child. In the UK the age limit for parental leave was increased in 2015 so it can now be taken up to a child’s 18th birthday.
What might happen? The UK Government could remove this as a result of Brexit but as the age limit was recently increased in the UK, it’s unlikely to change once the UK leaves the European Union.
Working Time Regulations
Working-time regulations are an EU-based right. For example, UK workers did not have a statutory right to paid annual holiday until the EU Working Time Regulations stated as such. The Directive ensures that all workers are entitled to at least 20 days’ paid annual holiday, but the UK Government increased this entitlement to 28 days, including bank holidays. This is an example of how the UK Government has chosen to ‘gold-plate’ some aspects of EU law, providing more generous provisions for UK workers.
What might happen? A future Government might decide to exclude payments such as commission and overtime from holiday pay, contrary to the current direction of the EU. It may also reverse the current entitlement of workers on long-term sick or maternity leave to carry-over unused holiday entitlement to another leave year.
48 Hours Maximum Working Time Rule
This is another example of EU-based law under the Working Time Directive. In the EU an employee’s working week is limited to 48 hours, but you are able to opt out of this rule in the UK.
What might happen? The UK government could decide to remove the 48 hours maximum working week limit as a result of Brexit, so UK workers may lose this protection and be expected to work longer hours. There has been some discussion that the UK should include some on-call and travelling time as working hours but a decision has not been finalised.
Collective Redundancy Consultation
This is an EU-based right where the consultation periods for redundancies of 100 or more employees were reduced in 2013 from 90 to 45 days.
What might happen? These may be subject to change due to Brexit. The UK could remove the duty to consult on collective redundancies or reduce the time period again. However, Trade Unions would oppose any change.
Transfer of Undertakings (TUPE)
This is an EU-based right which was also enhanced under UK law when the Government added the Service Provision Change factor.
What might happen? The UK Government could make it easier for businesses to harmonise terms and conditions following a transfer, reduce or remove the duty to inform and consult employees regarding the TUPE transfer, and make it easier for employers to dismiss employees pre-transfer. Again, nothing is finalised and it depends on what direction the Government decides to take.
Discrimination broadly covers sex, race, disability, age, religion/belief, sexual orientation and associative discrimination. Due to changing social values this is always evolving.
What might happen? As the UK is currently a member of the EU there is no cap on the financial award for injury to feelings for successful discrimination claims. However, as a result of Brexit the UK could decide to apply a maximum cap on financial compensation for discrimination claims. There have been suggestions of applying the same cap as unfair dismissal to awards, thus limiting a worker’s compensation.
This is another EU-based right. The Agency Workers Regulations 2010 give agency workers the right to receive the same basic working and employment conditions (including pay and holiday rights) as permanent staff after 12 weeks of work.
What might happen? The Government could remove basic rights for agency workers due to Brexit. Thus, agency workers could lose out as a result of Brexit.
Fixed Term Employees
This is an EU-based right which protects fixed-term employees against less favourable treatment.
What might happen? Due to Brexit the UK could remove these rights, meaning fixed-term employees lose the right to be treated equal to a permanent employee.
Part Time Workers
Part-time workers currently have the right not to be treated less favourably in comparison to full-time workers thanks to EU law.
What might happen? The UK Government could remove this right.
The jury is out on whether these EU-based laws will remain as a result of Brexit. The majority of these laws are favourable to workers by giving employees better or equal rights. This means that over the next two years the Government has lots of negotiating to do and big decisions to make, all of which could affect your rights at work.
The worst case scenario is that the UK Government decides to completely repeal all EU-based rights and laws, meaning an employee/worker would lose the rights outlined above. This means that the European Courts of Justice would no longer have any power over the UK and their decisions would not affect or bind the UK in the future.