Brexit - what does it mean for employment law?

Euro Love Grunge Flag, Nicolas Raymond

As political personalities ‘clash’ over the UK’s EU membership and ask should we stay or should we go, we consider three ways in which the EU directly influences worker’s rights in the UK (and provide you with an earworm that will stick with you all day).

1.    Working time

The EU guarantees workers’ entitlement to rest periods, paid holidays and maximum working hours. The EU directive was translated into UK domestic law by the Working Time Regulations in 1998. The rules on the 48-hour maximum working week (and opt-out) and the right to rest breaks (all of which originate from EU law) are now familiar to most UK employees. Despite the UK annual leave entitlement being more generous than the EU minimum of 4 weeks, it is now difficult to imagine the UK without a minimum annual leave entitlement being prescribed by law.

2.    Equality at work

The Equality Act 2010 is a substantial piece of UK legislation which gathers together the previous anti-discrimination laws in a single statute.  It provides employees with protection from discrimination in the workplace on the grounds of race, sex, age, disability, pregnancy and maternity, religion and belief, marriage and civil partnership, gender reassignment and sexual orientation (the ‘protected characteristics’).  

The Act provides freedom from poor or unfavourable treatment based on a protected characteristic (such as failing to promote women because they tend to go on maternity leave) and also protects employees from policies or practices in the workplace  which, while applied equally across the workforce, have a particularly negative impact on certain groups (such as workers with religious beliefs about certain rest days).

The Act also provides protection for employees from harassment (such as offensive comments or inappropriate behaviour in the workplace) and victimisation (where an employee is penalised for raising a complaint of discrimination).

The Equality Act has been directly influenced by European legislation and employment tribunals in the UK are obliged to interpret the Act in line with the wording and purpose of various EU directives on equality.  There is also the potential for a claim to end up in front of the European Court of Justice when a claimant argues that the UK Equality Act is inconsistent with European directives.

3.    Transfer of undertakings (TUPE) 

The TUPE Regulations 2006 incorporate European legislation which protects employees when their employment is transferred (for example on the sale of a business or the outsourcing of services) into UK law.  

This piece of legislation can be unpopular with employers and is sometimes cited as an example of overly burdensome and complex legislation emanating from Europe. There is no doubt that, where TUPE applies, it has a significant impact on corporate transactions, restricting a business’s ability to dismiss employees or to make changes to terms and conditions of employment following the transfer.

The above examples represent just a fraction of the European legislation which affects workplaces in the UK on a daily basis.  In the event of a ‘Brexit’, it is unlikely (although possible) that the UK government would reverse the law in these areas.  However, it is entirely possible that the UK, finding itself uncoupled from the EU, would start a gradual process of subtle change to the current employment law regime.  

The decision on continued membership of the EU which is now on the horizon could result in the removal of a significant source of employment law in the UK. We have four months of suggestions ahead that ‘if we stay there will be trouble’ and ‘if we go it will be trouble’ before we find out what the effect of that decision will be.

image credit: Euro Love Grunge Flag by Nicolas Raymond