Employment lawyer Alex Monaco explains the effect Brexit could have on employment rights. He is the founder of #EmployeeRightsDay, to be held on November 1, and author of The Resignation Revolution: How To Negotiate Your Exit Package Like A Pro.
Following Brexit, the UK government has committed to protect workers’ rights, and “seek out opportunities to enhance protections when that is the right choice for UK workers.”
But what could the immediate effect of leaving the EU have on workers’ rights, and how informed are workers about what they’re entitled to?
At present, many of the rights that protect us in the workplace derive from EU law. For example:
- the Working Time Regulations, which include provisions for annual leave, holiday pay and rest breaks
- family leave entitlements, including maternity and parental leave
- certain requirements to protect the health and safety of workers
- legislation to prevent and remedy discrimination and harassment based on sex, age, disability, sexual orientation, religion or belief, and race or ethnic origin in the workplace, and any victimization
- the TUPE regulations - protecting workers’ rights when there is a transfer of business or contracts from one organisation to another
- protections for agency workers and workers posted to the UK from EU states
- legislation to cover employment protection of part-time, fixed-term and young workers
- information and consultation rights for workers, including for collective redundancies
- insolvency legislation and redundancy related payments to employees.
Other rights, like the right not to be unfairly dismissed and rights in the event of strike action derive solely from UK legislation and not from EU law at all.
Will any of the current employment laws change?
Under The European Union (Withdrawal) Act 2018, the government have committed to retain all current EU rights and as such, for the vast majority workplace rights will not change when we wake up on 30 March 2019.
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There are a few changes which are likely to affect a small number of people. For example, currently the Employment Rights Act guarantees some payments in the case of an insolvency and there are reciprocal arrangements in EU countries. These reciprocal arrangements may not honoured in the event of a no-deal Brexit.
How easy is it to change employment laws?
The wide raft of workplace rights has become a fundamental part of the public’s understanding about fairness and equality in the workplace. This should leave us with a degree of optimism that the government will keep its promise to commit to workplace employment rights.
However in recent years we have seen how quickly a government can change the landscape of employment rights.
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For example, in 2012, the qualifying period for unfair dismissal claims was increased from one year to two years. This removed the rights of tens of thousands to complain to the tribunal when they were dismissed.
As a result, employers now often take the view that they can fire at will and that they will not have to face a tribunal to justify their actions.
In 2013, the government introduced tribunal fees - they were ruled unlawful by the Supreme Court in 2017 - that meant the number of claims being brought plummeted, as they became prohibitively expensive.
Could the government change laws if they wanted to after Brexit?
It would be possible for the government to revoke existing laws after Brexit in theory.
One way this might come about is if business lobbies were able to persuade their political friends that current rights places too big a burden on business.
For now, as employment lawyers we are waiting with everyone else to see whether the government can manage to thrash out a deal.
We suspect that Brexit will feature in employment disputes for some time to come, either because of its impact on the economy, or as a feature in discrimination claims.