Bonfire of the regulations?

01 July 2016

Well. I didn't see that coming. But, as a consolation, it doesn't seem that many others did either.

Much of the employment law and HR practices in the UK are derived from EU legislation and case law. Does this mean familiar concepts such as TUPE, holiday and working time provisions, maternity rights and data protection are headed for a bonfire of the regulations?

No. Not now. Not soon. And possibly never.

From a lawyer's perspective, Friday 24 June presented exactly the same legal framework as the day before. The UK is still a member state of the EU. EU legislation continues to apply (either with direct effect or through UK legislation enacted to give effect to EU directives). Decisions of the Court of Justice of the European Union will still be binding on UK courts.

This position is not going to change anytime soon. A day is a long time in an HR professional's world. Employment lawyers are used to giving urgent advice covering the full range of human idiosyncrasies and faults.

Our earliest exit from the EU looks like being the end of 2018. This depends on the election of a new Conservative Party leader and Prime Minister and the immediate triggering of Article 50 of the Treaty on the Functioning of the European Union.

There are plenty of commentators who can't see the UK's government rushing to meet this deadline.

What about in the longer term? Or, put another way, why might HR practitioners never have to deal with the consequences of last week's vote? There are two reasons.

The first is that we might not leave the EU in such a way that restricts our access to the single market. If we decide not to leave the EU or to leave the EU but retain access to the single market (e.g. reassuming membership of the European Economic Area and a status to the EU akin to Norway's current arrangement), EU employment legislation is likely to still apply.

The second is that the bulk of EU employment laws are transposed into UK legislation. That means Acts of Parliament and Statutory Instruments that need to be repealed, amended or replaced. If the government has embraced a looser trade relationship with the EU, it is likely that it will have far more pressing issues to deal with than tinkering with established employment law provisions.

A radical government with a pro-business agenda might attempt to rip up some of the most egregious regulations. TUPE is top of the hit list in this respect. But it is difficult to see a government pushing through a comprehensive range of policies that will fundamentally strip away workers' employment rights.

In the meantime, the government now has to grapple with the myriad consequences of the vote. Bertolt Brecht's poem, The Solution, was written in the aftermath of a failed uprising in East Berlin in 1953. Its sardonic conclusion may find grim echoes in Westminster's corridors of power:

"The Secretary of the Authors' Union
Had leaflets distributed in the Stalinallee
Which said that the people
Had forfeited the government's confidence
And could only win it back
By redoubled labour. Wouldn't it
Be simpler in that case if the government
Dissolved the people and
Elected another?"

Age concern

There has been a lot of discussion about Millennials in the post-referendum commentary. As far as HR is concerned, however, Millennials are yesterday's concern. Recruiters will soon have to grapple with how to engage, retain and work with Generation Z.

By 2020, Generation Z (on its most generous measure, a label for those born after 1995) will make up 20% of the workforce. This is a generation that has lived through monumentally uncertain times. They are more conservative, pragmatic and risk averse than their parents.

One thing that employers may have the biggest difficulty with is reward. Passion is a more valued commodity than just money. So, how will employers recruit and retain this digital native, nomadic and entrepreneurial generation?

Agile working? portfolio lives? Time to pursue personal goals and concerns? Transparency and social responsibility? Are you ready for Generation Z?

This article was originally published on Thomson Reuters, July 2016.


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