"But I took all the heartache and turned it to shame; now I`m moving on and I ain`t taking the blame" sang David Coverdale on Whitesnake`s classic blues song "Fool For Your Loving" and co-written with Bernie Marsden and Mick Moody. These particular words chimed in my head as I surveyed the political landscape on Brexit and what that means for our employment law. What is going to be the best practice for business owners? How are employees going to know what are the new safeguards and rights under statutory safeguards?
Clients regularly ask me how they are to structure their business or the impact on their employment contracts post Brexit. Our departure from the EU certainly stirs up strong emotions amongst people with those who want a second referendum, those who want to remain and those who want to leave. As tired eyes scan settlement agreements and ears register the constant ringing of the office telephone or the pinging of my iphone somewhere, somehow, I hear David Coverdale`s words soaring over the white noise: "I`m so tired of trying I always end up crying Fool for your loving no more I`ll be a fool for your loving no more".
So - what about the UK`s employment law post Brexit? Parental leave and pay are a mixture of UK and EU law and covers the right to maternity leave and pay. Domestic rights under UK law for maternity leave already exceed the minimum required under EU law. Although a burden for employers, it would be politically unworkable for them to be amended.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides employees with the right to have their employment transferred from one entity to another in the event of a business sale. Could it possibly be "Bye, bye TUPE" post Brexit? Almost certainly not! Although deriving from an EU directive, the UK Government has introduced the domestic concept of "service provision charge" to apply to the contracting out, in and change of service provider. The scope of TUPE has been extended by choice so it would be politically difficult for the Government to now come back from this legal position.
"Now I`m moving on and I ain`t taking the blame". The right to statutory paid holiday is well established. it is almost a racing certainty that it will remain. UK workers receive a more generous minimum holiday entitlement than required under EU law, which currently sits at 28 days (inclusive of public holidays) per year. The EU Working Time Directive 2003/88/EC requires Member States to implement legislation providing for a minimum of only 20 days annual leave.
However, the Government may want to limit the rights to accrue and carry holiday over to new holiday years and to remove the cap on the maximum working hours of 48 hours. The 48 hours limit is rarely followed in practice, with most employees signing an "opt out" agreement at the start of their employment. The law contained in the Agency Worker Regulations 2010 is the most likely to be repealed following Brexit due to it`s unpopularity with employers.
Most importantly, following Brexit, the UK will still seek and need to maintain strong trading relations with Europe. As with other areas, such as data protection, the UK will need to demonstrate that it has minimum employment protections in place in order for it to make a viable trading partner for other European Member States. Employers will be concerned about the impact Brexit will have on the free movement of people and workers. The Government will be aware of the adverse effect on trade and it is likely that there will either be some form of free movement or amnesty.
This will allow those existing UK/EU migrants to stay for a reasonable period. The alternative scenario is for the introduction of a points-based system for the free movement of goods and workers. However, there will be challenges for the UK in that scenario. If the UK does impose new restrictions on the rights of EU citizens to come to the UK it is probable that other EU countries may seek o impose reciprocal controls on UK nationals travelling to the EU.
The prediction is that the Government will take a piecemeal approach to legal changes. The majority of EU employment law will remain but with minor amendments. Employment law in the UK has been substantially influenced by the EU over the past 15 - 20 years. legislation emanating from the EU has become the leading source of best practice for employers in the UK. Little will change post Brexit.
Further advice:
Ian Henery Solicitors
