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So what does Brexit mean for employment law?

28/06/2016

Well - nothing in the short term. There will be no immediate changes and in my view, even in the longer term, there will be no great erosion of employment rights / labour laws. 

There will however (and I am in support of this) be an opportunity to challenge some of the decisions made by the EU Courts in the past, which for many seem somewhat bizarre if not ridiculous when looked at from a practical point of view and from the point of view of SME's (small medium sized enterprise). 

So how does it work now (while in Europe)? Well I think we are all familiar with the idea of Europe introducing laws that are 'imposed' on the UK, i.e. the government have to incorporate them into UK law. So leaving Europe will not automatically remove or repeal any of these laws, as we have passed our own laws to incorporate them, so we will have to change current laws or re-interpret them or repeal them. 

So let's take an example. One area that we will all be aware of is the Working Time Regulation. This was a European Directive and back in 1998 became UK law. It introduced rules about working hours and gave the statutory right to paid holiday. 

When there have been disputes in the UK courts about the interpretation of the Directive and/or how it has been incorporated into the UK, the UK courts refer a question to the EU courts.  This not only lengthens the time taken to resolve any disputes, but can result in some bizarre decisions. 

With the Working Time Regulations such decisions have included the accrual of holiday by employees while they are off sick. This can result in someone being off sick for 12 months and then being paid for their holiday. A scenario that many SME's find very hard to understand or swallow. In addition, we have had the recent cases where the inclusion of commission, regular overtime and other regular payments have to be taken into consideration when paying holiday. In my view this will be challenged as many would like to go back to paying holiday based on basic salary. 

But no one is suggesting that (and I think it extremely unlikely) that the UK would go as far as to remove the right to paid holiday or completely abolish/repeal the Working Time Regulations. 

So what other areas may be open to challenge and change post Europe! 

TUPE

TUPE or not TUPE - that is the question! It is unlikely that TUPE will be repealed but we may see some tweaks that would make it more 'user-friendly' to businesses. These may include allowing the harmonisation of terms of employment post-transfer, following accepted UK based case law in this area rather than following cases decided in Europe that prevent the harmonisation of terms. 

There may also be further relaxation of consultation rules around TUPE. 

Redundancy Consultation

The requirement to collectively consultant when there are 20 or more redundancies stems from a European Directive. This is why the Woolworth's case was referred to the ECJ by the Court of Appeal. It took nearly 2 years for the answer to come back!

But we may see a change post Europe where the need to collectively consult is either repealed (this is unlikely) or that the requirement only arises where a larger number of redundancies are envisaged (e.g. more than 100).

The bottom line is, we will have the opportunity to challenge decisions made by Europe or amend or repeal legislation that was introduced because of a European Directive.

For me this means we have better control over our laws and Sovereignty. This puts us more in control. However, it will not prevent the UK Government or UK courts from making their own bizarre laws and decision. 

We have interesting times ahead ...watch this space. 

Paula Fisher. You can contact Paula at paula@practical-hr.co.uk


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