How Brexit is likely to alter UK employment law

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The impact of our “out” vote depends on what is now decided between the EU and UK. EU leaders have made it clear that access to the European free trade area will require Britain to agree to similar regulations, particularly when it comes to employment. As such, unless the government choses to repeal all EU-derived laws, the changes we’ll soon be facing may not be as radical as you might think – it’s unlikely Britain would want to completely separate itself from Europe.

A Norwegian type model will see us likely stick with the status quo

One option we may soon be facing, according to Karen Bexley, head of employment law at MLP Law, could be to form a Norwegian-style relationship with the EU “by joining the European Economic Area (EEA) and the European Free Trade Area (EFTA). This would allow the UK to keep its economic ties and continue trading in the European single market.”

She added: “But by remaining part of this trading block, the UK would still be bound by some EU policies.” As with other areas such as data protection, Britain will need to demonstrate that it has minimum employment protections in place in order to make it a viable trading partner for other European member states, such as TUPE and collective redundancies consultation.

However, “now it would no longer have a say when it actually came to making these laws, a major drawback that should be taken into account if the UK finds itself negotiating a new agreement with the EU,” Bexley said.

Primary versus secondary legislation

Given that the majority of EU employment laws have been integrated into the UK as “primary legislation” via Acts of Parliament, they can only be changed or removed if the UK government specifically seeks to do so. “As laws, such as the Equality Act 2010 which comes from the EU’s Equal Treatment Directive, are so well ingrained into the UK legal system, it’s highly unlikely the government would look to amend them,” Bexley added. 

Other European laws, such as the Working Time Directive which gives employees rights to paid holiday and rest breaks, have been incorporated into UK law through “secondary legislation”. These regulations are introduced by government ministers who have specific powers to do so, granted by the European Communities Act 1972.  If the government removes the European Communities Act, it would take away this framework within which European and UK laws integrate and may mean that regulations passed under it also fall away. 

Read more about the Brexit debate:

Will anything stay the same?

But employers and employees alike will be elated to know that some areas of law will not be changing. The National Minimum Wage, including the National Living Wage, is set by the UK government and so would not be affected. And when it comes to other employee-friendly laws which do come from Europe, such as the right to maternity pay and leave and holiday pay, these are also unlikely to be altered dramatically in the future. 

This is because the UK is relatively more generous with these policies – Britain’s statutory minimum holiday entitlement currently sits at 28 days per year for a full time employee whilst the EU Working Time Directive requires member states to implement domestic legislation providing for a minimum of only 20 days annual leave. 

Read on to find out about the points system EU citizens will soon be facing.

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