How will Brexit impact employment law? Laws are unlikely to change significantly, in the short term at least

In the latest of our series of articles on Brexit and the changes we can expect come 1^st January 2021, Employment Partner Paul Menham looks at the implications for UK Employment Law and highlights any potential changes we may see.

Whilst a good proportion of UK Employment Law emanates from the European Union, I do not anticipate any momentous changes from the start of 2021. There could be some mild tinkering around the edges, but the fundamentals should stay the same.

Before I look specifically at the rules that did come from being a member of the EU, it is worth briefly noting that Unfair Dismissal, Breach of Contract, Redundancy Payments and Maternity Payments are all UK laws. As such, I do not expect any changes to the way these are handled.

Anti-discrimination law

Technically, it is possible that the UK government may decide to drive the proverbial coach and horses through all anti-discrimination law, but it seems highly unlikely that they will do so. Whilst anti-discrimination law was an implementation of our EU obligations, it is now firmly encapsulated in UK Law under the Equality Act of 2010. So, unless the government chooses to revoke that Act, the law on discrimination will not change.

That being said, one area that may receive some attention is the potential maximum award that can be made after discrimination has been proved. Currently there is no cap on the level of award, but the government may look to address this by applying a maximum threshold, similar to the one we have on unfair dismissals. Whilst there has been no proposal to do so yet, one can never say never.

Maternity Leave

Our current rights to maternity leave and pay arose from our membership of the EU, but we have actually chosen to embed more generous rights than the minimum level set out by Brussels. It therefore seems highly unlikely that there will be any change here. It is also worth noting that shared parental leave (and indeed rights to flexible working) are not EU obligations and were set domestically. So, again, I don’t expect to see any changes.

Paid Holiday

It seems inconceivable that there would be any proposal to strip employees of their right to take paid holiday. That said, there are a couple of specifics I will be watching closely for. Firstly, the government may choose to make changes to rules relating to carry over or accrual of leave during periods of long-term sickness absence. And, secondly, they may favour a more straightforward approach to the calculation of holiday pay; perhaps even limiting it to basic salaries only.

TUPE

Our current TUPE rules were a part of our EU membership, but it’s hard to see the UK abolishing TUPE in its entirety, thus allowing businesses to unceremoniously dump employees on service provision charges and transfer of undertakings. However, there is the possibility that the UK may choose to remove EU rules that prevent the harmonisation of terms following transfers.

Down Time

It’s unlikely that the UK would want to remove the protection in place around rest breaks (particularly for young and night workers), but the government may well look at the 48-hour maximum week and find support in the wider business community for abolishing it.

Collective Redundancy Consultations

It is fair to say that some employers consider these EU rules as problematic and would rather be without them. That being said, most businesses do seem to be able to function within the framework, working with unions or employee representatives. And the burden is not significant – particularly as the longest consultation period now stands at 45 days. One thing the government might address is removing or reducing the obligations for insolvent businesses because the additional cost is met by the taxpayer.

Agency Workers

These rules have been unpopular with some UK businesses and so choosing to remove the Agency Worker Regulations is likely to be seen as a popular move. This could be one change that does happen.

In conclusion

I do not expect Brexit will result in a bonfire of UK Employment Laws. Apart from the changes that are already in place in respect of EU citizens right to work in the UK, I do not expect significant transformation, even to the rules that originally came from our EU membership. It is possible, in time, that the government will look to make some minor changes to the law that Brexit has provided it with the permission to do. If this happens, you can expect them to benefit employers over employees.