Reading: Blandy & Blandy highlights need to reconsider employment legislation

Tim Clark, a partner in the employment law team of Reading-based Blandy & Blandy LLP, has highlighted the need, in the context of Brexit, to preserve, repeal and amend the employment legislation.

EU law is embedded throughout UK employment legislation and it will remain binding unless action is taken to amend or repeal it. Leaving the EU will thus not in itself have an immediate effect on employment legislation.

Theoretically, parliament could repeal the European Communities Act 1971 meaning that all of the regulations passed under it would cease to have effect. However, it is far more likely that changes will take place in a piecemeal fashion to avoid significant legal and commercial upheaval.

In some instances, such as the amount of paid holiday an employee is entitled to take, the UK has chosen to offer enhanced rights compared with what EU legislation demands and it is unlikely to go back on this. Equally abandoning or substantially reducing the protection provided by discrimination legislation seems unlikely.

The extent of change in both employment and immigration law will largely depend on what is negotiated with the EU in terms of the UK’s relationship post-Brexit. If the UK is not prepared to maintain the same employment protections as EU law requires, this would create problems, as being able to avoid EU protections would give UK businesses a potentially-significant commercial advantage.

However, if the UK maintained substantially similar legislation but was released from having to follow the decisions of the European Court, that would be significant in itself. The Working Time Regulations which govern working hours and holiday are a case in point.     

It is likely that most elements of the working time regulations will remain in place. The right to take 5.6 weeks paid annual leave as compared to the EU minimum requirement of 4 weeks is likely to survive. However, a number of recent European Court decisions which UK courts and tribunals have been obliged to follow have at best been confusing and at worst been deeply unpopular with employers . These include the right to accrue and carry over holiday pay while off sick and the inclusion of overtime, commissions and bonuses in holiday pay.

Released from the need to follow the European Court, UK Courts and Tribunals could establish a new approach which is less protective of employees and more consistent with the expectation of employers.     

Multiple redundancy situations, business transfers and changes in service provider are all governed by law which derives from the EU. The requirements regarding consultation on large-scale redundancies have already been the subject of recent changes but the recent revamp of the TUPE legislation which governs business transfers and service provisions changes did not really go as far as expected. In fact, it has been argued that the UK TUPE regulations go beyond what EU law demands and could have been modified further before a Brexit. Obviously one argument is that if we were content maintaining regulations which went beyond EU requirements before, leaving the EU should not make a difference. However, this is possibly a moment where the appetite for a relaxation of the situations to which TUPE rules apply and the consultation provisions and rules which frustrate changes in terms and conditions if they do may be renewed.

Theoretically, leaving the EU will mean that EU citizens will no longer have the automatic right to reside and work in the UK (and vice versa) unless they have already obtained permanent residency. However, in reality, free of movement of workers is likely to be a key part of the exit negotiations.

Suggestions have been made that a points-based system similar to that which already applies to non-EU citizens will be adopted for EU nationals and that existing residence rights for EU citizens already residing in the UK will remain the same in return for the same treatment for UK citizens residing in other member states. In any event, even if other changes occur sooner, the current free movement arrangements are expected to remain in place for a minimum of two years following the Brexit vote.