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Busting the Brexit employment law myths

In such uncertain times it's important to set the record straight on employment law matters

HR professionals and employees will have many questions about how exiting the EU may affect UK employment laws and worker rights. So it's time to bust some Brexit employment law myths:

Will it mean an end to statutory holiday and sick pay?

Entitlement to holiday is set out in the Working Time Regulations, which are derived directly from EU law. However, entitlement to holiday is set out in an individual’s contract and cannot just be taken away, even if there is a change of law. Given that the UK opted to increase the amount of holiday from the EU minimum of 20 to 28 days, removing it when we are no longer a member of the EU is highly unlikely. Sick pay is not influenced by Europe.

Do we have to dismiss EU national employees and do British workers in the EU have to return?

No, to do so would be an unfair dismissal and discriminatory. We are still in Europe and despite what the Leave campaign may have promised there will continue to be free movement until we aren't, which will probably be years.

Will the European Court of Human Rights (ECtHR) have any influence on the UK once we exit?

Yes. This is because the UK signed up to the Council of Europe. It is entirely separate from the EU and so all cases involving human rights will still be heard by the ECtHR. However, what will change will be the referral of cases to the European Court of Justice (ECJ), to ask the ECJ if the UK has implemented EU law correctly or interpreted a case properly on matters such as TUPE, collective consultation, discrimination or working time.

All employment laws originate from the EU

No, there are some that do such as the Working Time Regulations, TUPE (Transfer of Undertakings Protection of Employment) Regulations, the Agency Workers Regulations and rules on collective consultation in redundancy situations. But equally a lot of the laws are ‘home bred’ such as sex and race discrimination, unfair dismissal, minimum wage and many of our family-friendly regulations.

We will no longer have to abide by laws that originate in the EU

It is important to remember that a law passed by Europe does not have any direct effect on the UK until legislation is passed here. Therefore although the laws may have originated in Europe, laws have already been passed in the UK to reflect them and until these are repealed we must abide by them. There are some laws that are likely to be adjusted such as the compensation for discrimination being capped in the same way as unfair dismissal, making it easier to harmonise terms and conditions after a TUPE transfer. Also, removing the Agency Workers’ Regulations, which give parity for agency workers after 12 weeks. The Working Time Regulations will technically fall away once the primary legislation from which they came (the European Union Act) is repealed. However, it is unlikely that the government will leave the country without a right to paid holiday and rest breaks.

Will we have lots of new employment legislation to understand and implement once we exit?

Highly unlikely. It is difficult to understand how the government will cope with the amount of negotiation needed to unravel all our trade deals; changing employment laws that work is unlikely to be at the top of its wishlist.

Beverley Sunderland is managing director of Crossland Employment Solicitors