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The potential implications of Brexit on employment law

Employment law is one area that could change post-Brexit and this could therefore affect you whether you are an employer or an employee.

Immediately post-Brexit there is unlikely to be any significant change to basic employment law, because much of EU employment law has been brought into effect by UK legislation that will remain in force post-Brexit unless and until amended.

In other cases, the UK deliberately provides protection that exceeds the EU minimum. Prime examples include maternity leave and the right to 5.6 weeks, holiday as opposed to the 4-week EU minimum. Withdrawal from the EU is therefore unlikely to prompt a change in these areas.

Post-Brexit, UK Courts and Tribunals will not refer cases to the European Court of Justice and will not be obliged to follow decisions from that Court, but that is not going to affect many people’s employment position.

Employers’ internal employment policies and even their Contracts of Employment often reflect certain EU rights, for example, working time, sickness, absence and equal opportunities. From a legal perspective, reducing entitlements to these rights could be difficult for an employer if these rights have already become contractually entrenched.

The following rights are UK-based and do not stem from the EU so are unlikely to change:-

• unfair dismissal;
• minimum wage;
• unauthorised deductions from wages;
• statutory redundancy;
• industrial action;
• paternity leave;
• shared parental leave;
• flexible working;

Pregnancy and maternity provisions are a mixture of EU-and UK-based rights, but UK rights go further than the EU minimum. Wholescale changes are unlikely, but it is possible that there could be a reversal of the current entitlement of workers on maternity leave to carry over unused entitlement to another leave year.

Parental leave is an EU-based right. This right is to unpaid leave, which limits its actual uptake. It is unlikely to be a priority for change.

Working time is an EU-based right. The UK has opt-out provisions in relation to the 48-hour working week. A future government might remove this limit altogether.

Holidays and holiday pay are an EU-based right. The UK already exceeds the EU minimum in this respect and basic holiday provision is unlikely to be subject to change. The current entitlement of workers on long-term sick or maternity leave to carry over unused holiday entitlement to another leave year, could be reversed.

Collective redundancy consultation is an EU based right. This could be subject to change post-Brexit.

TUPE is an EU-based right that could be subject to change.

The current right of agency workers to the same basic working conditions as equivalent permanent staff after 12 weeks is an EU-based right. This is a likely candidate for change.

The UK had protections against sex, race and disability discrimination before it joined the EU but these rights have been extended by the EU and now include protections against discrimination on the basis of age, religion/beliefs and sexual orientation. Discrimination laws are widely accepted in workplaces and in wider society so significant changes seem unlikely, but there could be changes such as a limit for compensation payable.

Part-time workers have protection on an EU basis against less favourable treatment in relation to full-time workers. This could be subject to change, but could give rise to  arguments relating to sexual discrimination as the majority of part-time workers tend to be female.

Britain has a relatively flexible workforce and it is hoped that, as long as the employment law environment stays reasonably stable, there should not be significant problems for business post Brexit.

If you would like advice on dealing with employment contracts to ensure that you are fully prepared for Brexit, please get in touch with Katherine Flashman Kitson on 01566 772375 or email flashmankitsonk@www.parnalls.com

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