EMPLOYMENT 

It's not EU it's me...

The Break ups are invariably difficult, emotional affairs and the United Kingdom’s exit from the European Union is no different.

In the lead up to last Thursday’s referendum the implications for employment rights should the UK remain or exit were at the forefront of both side’s campaigns. On one side the remain camp argued that employees in the UK owed many employment rights to the EU and that by leaving many of these rights would be lost. The exit campaign on the other hand argued that employment rights were fundamentally British and that leaving the EU would have no impact on conditions within the workplace. The truth of the matter however lies somewhere in between these two statements.

There is no doubt that membership of the EU has served to enhance employee rights. For example the Acquired Rights Directive 77/187 forced a reluctant Conservative government to introduce the Transfer of Undertakings (Protection of Employment) Regulations in 1981 ensuring that employees were protected following business transfers. It is also notable that Employment law in the United Kingdom did not afford any specific protection to pregnant workers until the European Court of Justice ruled that the Sex Discrimination Act failed to meet the requirements set out under the European Equal Treatment Directive in the 1990s. Other notable improvements included the removal of the exemption for small businesses under the Disability Discrimination Act 1995 and the introduction of age as a protected characteristic under the Employment Equality (Age) Regulations (NI) 2006.

Many employment rights however existed prior to and irrespective of the UK’s membership of the EU. A statutory system of remedies for unfair dismissal was introduced in the UK via the Industrial Relations Act 1971, Equal Pay and Disability Discrimination rights were also introduced long before the EU sought to legislate in these areas. In addition the legislature in the UK has provided employees with rights over and above those required under EU law in respect of holiday leave (5.6 weeks as opposed to 4) and Service Provision Changes.

So with this in mind, what are the implications of a Brexit for employment rights going forward?

The Employment team in MMW recently had the pleasure of listening to a talk from Lord Justice Elias who is widely regarded as the leading authority on Employment law within the Judiciary having served as President of the Employment Appeal Tribunal in England from 2006 to 2009. When speaking on this point Lord Justice Elias expressed the view that employment rights which exist in the UK are now so ingrained in the culture of acceptable employment relations and practice that he did not foresee any significant departure from these rights in the future.

In the short term, leaving the EU will have little to no impact. As EU directives have been implemented into law via regulations the Assembly in Northern Ireland and Westminster would need to repeal domestic legislation to remove specific rights.

Looking into the future however much will depend on the terms of exit from the EU and in particular new trade agreements which the UK government will seek to negotiate over the coming years. Depending on the agreements ultimately arrived at, the UK may remain bound by some European employment laws. Trade and other agreements may be dependant on the UK agreeing to remain bound by framework laws such as working time as other EU countries may seek to ensure that it is not able to undercut them by allowing businesses to employ workers on less onerous terms.

What we can say however is that by leaving the EU future UK governments will have greater freedom to remove or change aspects of existing UK employment law which have proved unpopular with UK business. Provisions which spring to mind include information and consultation requirements under TUPE, the need to collectively consult when making 20 or more employees redundant and the agency workers regulations amongst others.

In addition it remains to be seen whether Tribunals and in particular higher courts such as the Court of Appeal and the Supreme Court revert to a more narrow interpretation of domestic law in the absence of the requirement to follow European Court of Justice decisions. Of particular relevance in this regard is the interpretation of a ‘weeks pay’ for the purposes of calculating holiday pay which currently includes shift allowances, commission and overtime in certain circumstances. The decision in Stringer & others v HMRC which provides that employees continue to accrue annual leave during sickness absence may be also be revisited in time.

Given the unprecedented nature of the UK’s purported exit from the EU however we can only speculate as to what the future holds for Employment law in Northern Ireland. Employers can take some comfort in the knowledge that the landscape of employment law is unlikely to change vastly, and certainly not in the short term. We would however advise Employers and HR professionals to watch this space closely over the coming years and to review their contracts of employment, policies and procedures in line with any developments.

Should you require any information or advice in relation to employment rights please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Department.


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