If, on 23 June 2016, the UK has voted to leave the EU what could be the effect for businesses and employees and the amount of employment law that comes from Brussels? Once out of the EU the government could in theory repeal some of it but would any government really do that?
Many employment protections like equal pay, race and disability discrimination laws, and the right of return from maternity leave existed in some form in the UK before being imposed by Europe and much of it is regarded, by employers, employees as a good thing. Employment rights such as family leave, discrimination law and the right to paid holiday and family leave go further than the EU directives.
If the UK has voted to leave, there is up to two years’ notice during which time the parties would negotiate the terms of departure. The UK will wish to stay in some sort of trading relationship with the EU and it will no doubt involve adherence to a certain amount of EU employment law.
So, gazing into my crystal ball, if freed from EU constraints what is likely that would actually change?
The most likely review is the Agency Workers Regulations 2010 which are unwieldy, unpopular with business and many workers.
It is difficult to imagine any government, employees or employers arguing that they should be free to discriminate and any change to the existing regime of direct discrimination, indirect discrimination and harassment seems unlikely.
Rights to parental and family leave in the UK are a mixture of rights from the UK and EU. UK maternity leave and pay preceded the EU rights and are more generous in some respects. The new right to shared parental leave and the right to request flexible working are both purely UK domestic in origin.
Transfer of Undertakings and Protection of Employment (TUPE)
TUPE often attracts a bad press, but the principle that employees should transfer when a business changes hands or is contracted out is useful and is incorporated and priced into many commercial outsourcing agreements. It seems most likely that the government would make some minor changes to make it more understandable and business/employee friendly.
Holidays and working time
The right to statutory paid holiday under the Working Time Regulations 1998 (WTR) is now broadly accepted. However, there are aspects of this right and of other rights under the WTR that the government might want to tweak perhaps to give more a more flexible framework for the benefit of businesses and their employees.
Collective redundancy consultation
Collective redundancy consultation obligations are not particularly onerous and it is not obvious that businesses regard consulting with their employees as a burden that should be removed.
If we retain some EU law the UK courts are likely to continue to regard judgments of the ECJ on those laws as persuasive and pre-Brexit UK court decisions incorporating ECJ interpretation would continue to be binding on lower courts and tribunals.
If the UK has voted to leave the EU, it seems unlikely that our employment laws and rights would be transformed in any significant way, particularly in the short term, and as a country we would continue to develop further improvements to benefit the working lives of everyone.