FORUMS & CLUBS - sme s & entr e pr eneur s club
What would BREXIT mean for UK employment law? Gary Freer, Partner and Head of the Employment Team at Bryan Cave considers how employment law might change if Britain were to leave the EU If the UK were to leave the EU, one significant advantage which
Possible targets for reform
is often cited (by those who wish it to leave) is the recovery of
High on the list would probably be the Working Time Regulations.
control over its own employment law. Throughout the history
Employers have found the obligations to keep records
of the UK’s membership, the influence of EU legislation and
burdensome and unnecessary. There is continued concern that
case law has steadily grown. A ‘Brexit’ would, on the face of
the UK’s opt out from the 48 hour maximum average working
it, leave the UK free to reshape a significant proportion of its
week will eventually be removed, which survey evidence suggests
employment legislation. However, in practice, the position may
would be deeply unpopular with a majority of the workers it
not be nearly so clear and simple.
claims to protect. Brexit would also enable the UK to limit the accrual of holiday entitlement during long periods of sick leave,
How long would it take?
including the right to carry it forward each year.
The first practical point is that there could be few immediate
The complicated and unpopular TUPE Regulations would
changes: realistically a Brexit could not take effect in fewer
also be a target, making it easier and simpler for employers and
than three years from the date of the Referendum, and a large
workers to harmonise terms and conditions after employers
number of technical issues would need to be solved first, and
have changed or combined – but it is interesting to reflect that
new legislation put in place.
the UK has in some respects passed legislation which has gone further than the EU Directive requires of it.
What would the UK’s relationship with the EU look like?
Changes to discrimination law would be highly sensitive
Much will depend on whether the UK would join the European
– and it is important to remember that the UK had much
Economic Area (like Norway) and/or the European Free Trade
discrimination law in place even before it joined the European
Association (like Switzerland). As part of these, the countries’
Community (as it was then). One possible change after Brexit
negotiated arrangements for access to the EU single market, each
would be to re-impose a maximum cap on damages awarded
had to agree to grant free movement of EU nationals and comply
in discrimination cases – a cap which was ruled unlawful by the
with EU employment law. The UK, as a larger economy, might be
European Court of Justice.
able to negotiate different arrangements, but it also opens up the
Of course, at this stage, we can only speculate what the effect
possibility that the UK could suffer the worst of all worlds: having
of a Brexit might be: my own best guess is that, whatever the
to remain bound by EU employment law, and without the benefit
politicians’ rhetoric may be, the practical effect of any changes
of the (limited) opt outs which it enjoys at present.
made to employment law in the aftermath will be fairly limited. I
Breakfast in a bookshop: members of the Luxury Club convene in Maison Assouline
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