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When reflecting on the possible changes to employment law as a result of the UK voting to leave Europe, we need to start by looking back at where current laws originated from in the first instance.
While there is some UK employment legislation developed here including the National Minimum and Living Wage, a significant proportion of the UK’s employment laws have evolved further or have become part of our domestic legislation as a consequence of the EU. These include wider discrimination rights, TUPE, Working Time regulations and consultation obligations.
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It is unlikely however that the prospective parting of ways with the EU will result in significant changes. Whilst there has been an EU influence, in most cases the UK already provided similar protection. This is certainly evident in the case of UK family leave rights.
It is more likely though that there will be changes to unpopular pieces of legislation. For example, the Agency Workers Regulations 2010 was a particularly unpopular attempt to give agency workers similar rights to permanent employees, impacting negatively on the flexibility afforded by using agency workers.
It is also expected that the legislation on immigration will change. This has raised concerns for many employers who currently rely on staff from EU countries who may have developed significant skills and knowledge they would want to retain. The indicators from the UK Government have been that they will ensure any changes will enable those employees with a current right to remain in the UK continue to do so.
Until the UK has negotiated what involvement they will have with the EU, the full impact of Brexit cannot be fully understood.
If we took the route Norway has taken and were able to join the EEA, then the UK would still be regulated by most aspects of European employment law. Alternatively the UK may negotiate a bespoke relationship with the EU which could result in more freedom to depart from EU employment law. This would result in the UK courts no longer being bound by the decisions of the European Court of Justice.
Our advice at this time of uncertainty is to be open and transparent in your communications with employees. From an operational perspective you may wish to give thought to your future recruitment requirements and succession planning and consider whether you should be restructuring your business moving forward. This is also a good time to check your contracts contain clauses to enable you to terminate employment lawfully and without acting in breach of contract if employees lose the right to remain in the UK.
Please feel free to contact us for further advice but as more information becomes available, we will report back.
Pam Loch, Managing Director of niche employment law practice, Loch Employment Law, HR Advise Me and Loch Training.