Legal

Which laws might need to be rewritten post-Brexit?

26 Oct 2018 By Richard Thomas

Richard Thomas explains the areas of EU law which might not make it through to the other side of Brexit

There have been mixed signals from the government about potential changes to employment laws following the UK’s departure from the EU. Theresa May has maintained that there won’t be any substantial changes to current laws. 

However, it’s been widely reported that other cabinet ministers are more inclined to be ‘flexible’ about potential changes to UK employment law. Changes might include:

Working time

Most Working Time Regulations will remain, and it’s likely that the right to 28 days’ paid holiday leave – and rest breaks – will stay. But, holiday pay calculations (including commission and overtime) might be reviewed and could revert to basic salary being paid as holiday pay. 

The maximum average 48-hour working week might also be abolished, along with ‘inactive on-call time’. And the accrual of annual leave during long-term sickness will probably be reviewed too.

Transfer of Undertakings (Protection of Employment) (TUPE)

TUPE currently implements the EU Acquired Rights Directive, which protects workers’ rights if the business they work for is sold to another one. TUPE will likely remain as part of the accepted employment protection. 

It might, however, be tweaked. Currently, restrictions on harmonising terms and conditions post-transfer apply and can’t be lifted because of EU law. But when we leave the EU, changes to terms and conditions might be allowed after a period of time after the TUPE transfer.

Protection of Worker Rights (Discrimination)

Under the 2010 Equality Act, the EU Equal Treatment Framework Directive (2006) was implemented in UK. UK legislation covers some protected characteristics – like race, sex, marital status and disability. But many of the more recent protected characteristics – like age, sexual orientation, and religion and belief – are derived from EU law.

Changes to the existing regime of direct/indirect discrimination, harassment, or victimisation because of a protected characteristic seem unlikely. But there is a call for discrimination compensation to be capped to a maximum of one year’s salary, in the same way as unfair dismissal is. This is incompatible with EU law – but could change after Brexit.

Climate change

Climate change doesn’t seem to be high up on the Brexit agenda but, while it does pose threats, it also creates an opportunity to make the UK a climate champion.

If it wants to do this, the UK will need to produce an individual Nationally Determined Contribution (NDC), and individually ratify the Paris Agreement. If we end up with a hard Brexit deal, the UK will leave the oldest emissions trading and carbon reduction scheme, the European Emissions Trading System. This system has helped us meet emissions targets – and leaving would mean adjusting the carbon budget under the Climate Change Act 2008. So, the UK’s emissions target could take a hit without it.

Human rights legislation

The Charter of Fundamental Rights of the EU currently protects human rights of everyone living in the EU. But, after Brexit, it won’t have effect in the UK. The UK will still be subject to the European Convention on Human Rights, though, as these are protected by the Human Rights Act 1998.

UK financial regulatory framework

The government has said that Britain will develop its own distinct regulatory framework. Financial regulation derived from EU legislation will apply in the UK until the government develops its own distinct, regulatory framework. These changes will depend on the future relationship with the EU. The UK has higher regulatory standards than some EU regulations, but, lots of finance/banking rules are set by global regulators, so these wouldn’t be affected.

If the UK intends to conduct business with the EU, it’ll need to comply with EU financial regulation. If we remain in the European Economic Area, passporting rights could be preserved – though this would mean adopting EU regulations, without the power to influence damaging ones.

Richard Thomas is an employment lawyer and partner at Capital Law

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