It has only been two weeks since the result of the EU referendum, and already our political landscape has undergone a transformation. The resignations of David Cameron and Nigel Farage have paved the way for fresh leadership. Whoever ends up at the helm, the journey towards achieving the UK’s exit from the EU will be a long and difficult one. Once our government has formally given notice of the decision to leave, there will be a 2 year period to agree the terms of our departure and the nature of any future relationship.

What this will mean for UK employment law is a topic of intense speculation. Many have real concerns about the potential for the erosion of employment rights which are derived from EU law but commentators have pointed out that wholesale change is unlikely. If the UK chooses to maintain some form of relationship with the EU; whether by retaining membership of the EEA or, adopting something akin to the Swiss model, it would continue to be bound by large parts of existing and future EU employment legislation. Decisions of the ECJ would also continue to be binding under the EEA model and persuasive under the Swiss model. Even if the UK opts for what has been referred to as ‘full Brexit’, radical change in the immediate future remains a remote possibility.

However, clearly there is scope for some change and this represents both an opportunity and a risk. Equality law practitioners, trade unions, charities and campaigners will need to be on the watch for attempts to water down or nullify aspects of employment rights by stealth. Any EU derived laws which have been incorporated into UK law by secondary legislation will be particularly vulnerable to amendment. It is no secret that the Agency Workers Regulations 2010 are a likely target as they are deeply unpopular with many businesses. In the context of a gloomy economic forecast, the Government is likely to find itself under pressure to take steps to help employers at the very time when even more people may be forced to rely on temporary work to make ends meet.

The Working Time Regulations 1998 are also ripe for amendment as they have long been in need of updating and simplification. There are justified concerns about removing those protections which are necessary from a health and safety perspective. However, this is one of the key areas where judicious revisions could actually prove positive for charities and other third sector organisations, particularly those in the care sector. A series of ECJ cases have stretched the definition of working time and the calculation of holiday pay to an extent that many practitioners believe is no longer logical or desirable. Amending these concepts would be a delicate balancing act but, if carried out correctly, could achieve real benefits for employers whilst still retaining necessary protections for workers.

This week the House of Commons vote put pressure on the government to guarantee EU nationals living in the UK the right to stay after Brexit. Ministers have so far resisted giving a guarantee in the absence of a reciprocal deal for Britons living abroad, leading to the accusation that EU nationals are being treated like ‘bargaining chips’. Clearly, the outcome of this will have significant implications from both immigration and employment law perspectives. Whatever the future holds we will focus on helping you to adapt to this changing landscape.


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Louise Rea

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+44(0)20 7551 7799

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Posted on 08/07/2016 in Brexit Briefcase

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