Marianne McJannett gives her view on the UK’s decision to leave the EU and how it may affect employment law in this country.
Many Scots are still in a state of shock and disbelief over a week after the seismic vote by the UK to leave the European Union. On Friday, 24th June 2016 the country woke up to the news that the majority of UK voters has chosen to exit the EU, despite a clear majority of Scots preferring to remain.
The implications of this referendum will be far reaching – and unknown for many years to come. But a primary question for many who work and travel abroad is: what does this mean for employment law?
Firstly, there is no reason to panic. The UK will continue to remain a member of the EU until there is an agreement on when we will leave. However, there are a number of employment issues that are likely to be affected when we do leave the EU.
While the Leave campaign wanted the process to take around two years, the remaining Member States of the EU have indicated that things should happen much quicker than that. The UK will need to negotiate new trading relationship with the remaining member organisations in order to allow British firms to sell goods and services to EU countries without being hit by excessive tariffs and other restrictions. Depending on the model which is chosen, the UK might remain bound by some of the European employment laws as the EU would not enter into trade agreements if we were able to undercut them as a result of less onerous employment terms.
It should be understood that much of the UK’s employment law exists regardless of our membership of the EU. However some of the more controversial requirements (from an employer’s perspective) may change. For example, the obligation to collectively consult where 20 or more redundancies are proposed stems from an EU Directive. This is an unpopular requirement for employers and it might be that this will be watered down, so that the obligation to collectively consult perhaps only applies where there are 100 or more redundancies proposed.
This will cause concern among trade unions who will see Brexit as bad for employment rights, however a future UK government will have the ability to vote on this without interference.
Similarly, most of the Working Time Regulations will remain given the fact the UK gold plated the European four weeks paid annual leave, instead offering 5.6 weeks’ leave. It is also likely that TUPE will remain given it is an accepted employment protection now and the UK enhanced its protection when extending its reach to include service provision changes 10 years ago.
There may be some relaxation on allowing post-transfer harmonisation of terms and conditions. We might see the removal of the Agency Worker Regulations which require employers to offer equal terms and benefits to agency workers once they have been working for 12 weeks.
The UK’s Discrimination Legislation which is contained within the Equality Act 2010 is unlikely to be repealed given we had already legislated to prohibit sex discrimination, race discrimination and disability discrimination before Europe required the UK to do so. However, there has been some discussion that discrimination compensation in the Employment Tribunal might be capped in line with unfair dismissal compensation. This currently can’t be done because our membership of the EU wouldn’t allow for it.
Finally there is unlikely to be any reduction to family friendly rights given that the UK exceeds the EU rights considerably in relation to maternity and shared parental leave.
That being said this is all very much uncertain and the likely position is that many businesses will not be making any big decisions in terms of recruitment or expansion until the economic picture is clearer.
One of the biggest bones of contention, especially among younger people, is the ability to live and work in Europe – and for Europeans to live and work in Scotland. Since migration is cited as on of the main reasons for those who voted to exit, there will of course be implications in terms of free movement of workers and employees who are employed in the UK but are EU citizens. However, it is difficult to comment on this in depth given this will be the result of negotiations with the EU once Article 50 has been invoked. However, an equitable solution would be to allow all EU citizens presently living and paying tax in the UK to be given the right of dual-nationality to continue working in this country.
One of the matters which might be a current issue for employers and employees is the way in which the post-referendum discussion has been playing out on social media and on the streets of towns and cities across the country.
Employees should be mindful of the fact that any comments to fellow employees about ‘going back to where they came from’ will potentially lead to disciplinary action in the usual way and that the UK’s exit from the EU should not be allowed to lead to racist comments or bullying and harassment in the workplace.
Marianne McJannett, an employment lawyer with TC Young, members of United Employment Lawyers.