Legal

How might Brexit – and Boris – affect employment rights?

12 Sep 2019 By James Tait

With the UK’s departure from the EU seemingly imminent, James Tait outlines the potential changes employers need to get to grips with

For the most part, EU employment law has been brought into effect via UK legislation and, in any event, the EU Withdrawal Act 2018 effectively converts EU law into UK law. This means that there should be no ‘legislative hole’ immediately following Brexit and most rights will be preserved. 

Furthermore, in March the government issued a technical note concerning workers’ rights post-Brexit and, in essence, stated that regardless of whether or not a deal is achieved, workers will continue to enjoy the level of protection they are currently entitled to under EU law. 

In the longer term, however, we may see amendments to this legislation, dependent on which political party is in power. It is currently not clear whether a general election is imminent.

Possible future amendments 

There are certain aspects of our current employment law protections that are already unpopular with government, employers and/or business groups and may be more likely to change post-Brexit, for example: 

Working Time Regulation

The British government resisted the working time rules, which impose a 48-hour working week, at the point of EU negotiation. The UK is already well-known for its opt-out provisions and a future government may wish to remove the limit altogether. 

TUPE

The government may look to review and revise the laws that affect employment protection in TUPE scenarios. Having said this, the UK itself extended TUPE rights to ‘service provision changes’ through domestic law – not because it was obliged to do so by the EU. 

Family rights

Some businesses, particularly smaller ones, contend that EU family-friendly legislation is disruptive for their business, although the current direction of travel appears to be in favour of the family, not the employer. 

The end of the CJEU’s jurisdiction

Leaving the EU will have the secondary effect of ending the jurisdiction of the Court of Justice of the European Union (CJEU). Many will see this as a blessed relief and end the perceived interference of Europe with our domestic matters. 

No-deal scenario 

If – which in the last week has become increasingly unlikely – there is no negotiated Brexit deal, the government has identified two areas that will be affected: 

employees who work in some EU countries who are employed by a UK employer may not be protected in the event of the employer’s insolvency; and 

regulations will be amended so that it will not be possible to make a new request to set up a European Works Council or an information and consultation procedure. 

Free movement 

Arguably, there are also some areas in which employers should seek to have an increased focus on as Brexit progresses – a key issue being free movement and right-to-work checks. 

Brexit confuses the issue of which EU citizens are lawfully entitled to work in the UK. While employees who were living in the UK as of 12 April 2019 are able to continue working in the UK, the recruitment of any who were not is now more complicated and a new system applies. Employers will need to have an increased focus on any government announcements on right to work. It is currently proposed that, as of January 2021, new guidance on the issue will apply. 

Keep looking for updates though – the unexpected seems to keep happening. 

James Tait is a partner at Browne Jacobson 

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