What happens to employment law if the UK leaves the EU without a withdrawal agreement? Would no deal mean an immediate threat to workers’ rights and EU-derived legislation?
Stuart Chamberlain, author and senior employment consultant at Croner-i, considers the implications for employment law under a no-deal Brexit.
The full version of this article originally appeared in Croner-i Human Resources. Read the complete feature here.
A no-deal Brexit would mean no transition period, and businesses, organisations and public bodies would have to respond immediately to changes. There is no clarity about what would happen.
In the short-term in employment law, however, things are likely to go on as before. The Government has already stated that there will no radical change to employment law after Brexit, and has already begun preparing for a no-deal Brexit.
The European Union (Withdrawal) Act
The European Union (Withdrawal) Act 2018 converts EU law into UK law, so that there is no legislative hole the day after Brexit. There will be no change to legislation or the law.
Technical notice on workplace rights
In anticipation of a no-deal Brexit, the Government has issued a series of technical notices, including one on workers’ rights. Workers in the UK will continue to enjoy the rights they are currently entitled to under EU law.
The following employment rights will remain unchanged:
- Rights to holiday pay, rest breaks, annual leave, maternity and paternity leave
- Protection from discrimination and harassment based on sex, age, disability, sexual orientation, religion or belief, and race or ethnic origin
- Protection of workers' rights in a TUPE transfer
- Protection of part-time, agency and young workers
- Protection and consultation rights for workers, including for collective redundancies
There are only two exceptions where the law will change:
- European Works Councils: European Works Councils represent European employees in the UK. No new requests to set one up can be made after Brexit – though requests made before Brexit can complete, and any existing EWCs will continue to operate.
- Insolvency: The rights of UK/EU employees working in an EU country for a UK employer that becomes insolvent may be affected. At the moment such employees are protected by national guarantee funds, but whether or not this remains the case will depend on the country.
The Government reached an agreement with the EU guaranteeing the rights of EU citizens living in the UK, and of UK nationals living in the EU, after Brexit.
Under the EU Settlement Scheme, EU citizens living in the UK, along with their family members, will be able to stay and continue their lives with the same access to work, study, benefits and public services that they enjoy now.
As the UK prepares to leave the EU, all resident EU citizens need to take action to secure their immigration status after Brexit.
The long-term position for legislative change after Brexit is less clear. Any major changes will depend on the government in power, and may be affected by a change in leadership, a general election, or even a second referendum.
Future changes to employment legislation
New employment laws are more likely in the long-term, although forecasts must be taken with a pinch of salt. Theoretically, in the event of a no-deal a sovereign Parliament would be able to scrap employment rights.
However, much of UK employment law does not stem from Europe, but from UK legislation – for example, the unfair dismissal regime, redundancy pay, flexible working and the detailed provisions on industrial action.
Nevertheless, employer associations and business groups have identified some likely targets as ripe for amendment. These include:
- Agency worker protection – the right of agency workers to the same working conditions (including pay and annual leave) as permanent staff after 12 weeks
- Limiting awards for discrimination – by introducing a cap, similar to that for unfair dismissal
- TUPE – in particular, the need to provide more opportunities for transferee employers
- Holiday pay claims during sickness – the entitlement of workers on long-term sick leave to carry over unused holiday leave into the next year; and the exclusion of commission and overtime from holiday pay calculations
- Collective redundancy consultation
However, this is all still speculative.
A new Immigration Act
Immigration was a big talking point in 2016 Referendum, and some issues may be reflected in a new immigration policy – which may in turn affect UK employment.
- An end to free movement and preferential access for EU citizens to the UK’s labour market
- Preferential treatment or priority given to high-skilled migrants
- Encouraging British people to fill the vacancies in areas that currently rely heavily on EU migrants such as hospitality, social and health care
- Minimum of exemptions from this emphasis on skilled workers – for example, a suggested seasonal scheme for agricultural and horticultural workers
Advice to employers
A ‘no-deal’ Brexit is filled with uncertainty, so it’s important that employers stay up-to-date with developments. I would also advise:
- Communicate developments to staff, particularly here-and-now issues
- Consider the implications of a no-deal Brexit on the business – short-term and long-term
- Carry out an audit of workforce and your future needs and skills, and consolidate this into a recruitment plan
- Ensure that staff from EU are familiar with the settled status procedure (open 30 March 2019 – 30 June 2021) – and employers may consider financing their applications
- Review policies and documents that will need amending post-Brexit
- Plan ahead for new immigration policy – once concrete details have emerged
Stay ahead with UK employment law with Croner-i Human Resources – packed with information, tools, and guidance on legislative updates as soon as they happen.