UK employment law after Brexit

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Many working rights are derived from EU law, but these could be scrapped or changed after the UK leaves the Union

As an employment lawyer I am often asked for examples of laws and rights the UK has been compelled to adopt by its membership of the EU.

While the majority of our laws have been derived in parliament we are governed at the highest level by EU legislation. Our ‘supreme court’ is the European Court of Justice and the UK cannot currently adopt national laws that are incompatible with European law.

Parental leave is an obvious example of an EU-based right. It entitles employees to up to 18 weeks' unpaid leave per child in addition to statutory maternity, paternity, adoption and shared parental leave. Given that parental leave is unpaid it is unlikely that this right will be repealed when we formally depart from the European Union.

Discrimination is another. While the UK recognised sex, race and disability as protected characteristics the EU extended this to include age, religion or philosophical belief and sexual orientation.

Although these new protected characteristics have been widely accepted, in the absence of EU control the UK may decide to introduce a cap on the level of compensation currently being awarded in discrimination claims.

Surprisingly, holidays and holiday pay are an EU-based right. The EU provides that worker holiday entitlement is a minimum of four weeks. The UK exceeds this by providing 5.6 weeks’ holiday, but it is the EU that insists that workers on maternity or long-term sick leave are able to carry over their annual leave entitlement to the following year. Moreover, the EU stipulates that holiday pay should now include overtime and commission payments.

The complexity that is TUPE is another EU-based right. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to a business transfer or a service provision change. TUPE introduced three concepts into UK employment law:

  1. The automatic transfer principle whereby employees transfer to the transferee who inherits all rights, liabilities and obligations in relation to them.
  2. Protection against dismissal relating to a TUPE transfer.
  3. The obligation to inform and consult with representatives of the affected employees.

While many believe the rules provide certainty, others argue that harmonising terms and conditions is difficult and that the level of due diligence and consultation is excessive.

Working time is an EU-based right requiring the UK to enforce a 48-hour limit on the average weekly working time. We did adopt the 48-hour limit but simultaneously introduced our infamous opt-out provisions enabling workers to agree in writing to opt out of the rules. This has been under review in Europe for several years.

The maximum limit on weekly working time may well be removed altogether following Brexit, along with the current provisions enabling travelling time to count towards working time.

Fixed-term employees have the right to be protected from less favourable treatment than permanent employees. Part-time workers are protected in the same way as full-time workers. These EU-based rights have been widely criticised for presenting yet another hurdle for employers.

Another EU-based right unpopular in the labour market relates to agency workers. EU law stipulated that following a 12-week period agency workers should be treated as permanent members of staff with serious ramifications for holiday entitlement and rates of pay.

Equally unpopular with our government is the EU rule that if an employer becomes insolvent, employees can claim monies from the secretary of state.

Probably the best-known EU-based right is May 2018’s General Data Protection Regulation (GDPR). When we leave Europe the GDPR will be replaced by an amended Data Protection Act with references to other member states and EU organisations removed. The information commissioner has stressed the importance of international consistency on data protection.

A key factor will be the need for UK businesses to receive personal data from the EU. The UK will have to demonstrate to the European Commission that it can continue to provide an 'adequate' level of protection for personal data processed in the UK.

Brexit is bound to cause upheaval for UK employment law but exactly what the future holds is anyone’s guess!

Emma Gross is head of employment at MCG Solicitors

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