While much of British employment law derives from Europe, some areas are purely UK provisions. So to what extent would existing laws be affected by Brexit and what wider implications might we expect? Here, we address some of the initial issues businesses will need to consider and look at how best to be prepared.
In the short term, the impact of Brexit on employment law will be marginal, but the impact on employee relations in the event of a 'no deal' Brexit could be very substantial. The only formal changes to UK employment law come in the areas of European Works Councils and employee guarantee funds for insolvency.
However, the uncertainty over the immigration status of EU nationals - together with hints from Government of strict enforcement - risks impacting individual employees, their colleagues and partners. Moreover, if there is substantial economic disruption, the political polarisation may intensify and be reflected in the workplace, with belief in remain/leave becoming in itself a head of claim in employment disputes.
The already difficult questions of which law applies to the contract of UK nationals working for UK-based employers but in the EU (and which court in which country deals with the disputes), will be subject to greater uncertainty. The relevant EU principles will cease to apply from the date the UK exits with, as yet, nothing to replace them.
Some employers may have contingency plans which involve redundancies in the event of 'no deal'. Any collective consultation obligations would be triggered from the point 'no deal' becomes most probably inevitable.
Key points to note are:
- UK legislation which is derived from EU law (discrimination, working-time, TUPE) remains in full force & effect, unless and until amended or repealed by the UK Government;
- The UK no longer counts as a state for the purposes of European Works Councils (EWCs). No new ones may be set up with UK workforce participation and the operation of existing EWCs may be impacted; • Irish nationals may continue to live and work in the UK as previously;
- Other EU nationals will have to resolve their own immigration status in the first instance. Reports on the 'Settled Status' scheme suggest substantial problems and uncertainty in implementation;
- The previous Conservative administration committed to not changing EU-derived employment law. The current administration has made no such commitment, and has reduced the amount of guidance given to businesses. The medium-term outlook is therefore now more uncertain; and
- In the event businesses suffer post-Brexit, there may be ill feeling towards colleagues who backed opposing sides of leave/remain. Such beliefs are likely to be protected under equalities legislation.
What should I do?
- As a matter of employment law, other than checking EWC arrangements, there is little employers have to do. However, as a matter of employee relations, any business that employs EU nationals should look to provide such reassurance, as they can, as to their continued value to that business. Employers should be aware that even if their employees' status is clear, that of their partners or dependents might not be.
- Employers should be aware of this in managing absence, performance and disciplinary issues. In our view, Tribunals will be sympathetic to individuals citing related stress as a mitigating factor in any cases. Employers should check equalities policies to make sure that political beliefs are covered. Make sure managers understand this, through broader diversity training or specific reminders, so that decisions on, for example, redundancies are not tainted by political views.
- Employers should check contingency plans which propose redundancies in the event of 'no deal'. Make sure you are familiar with collective consultation obligations and are ready to begin any necessary processes to respond to political decisions or statements.
Where to go for more information?
What might Brexit mean for employment law and access to skills?
Employment Essentials: 5 lessons from September 2019
UK Government guidance
UK Government guidance on: Workplace rights after Brexit