After all of the furore and (almost) endless debate and invective, it finally happened. Brexit actually did get done, overnight and we were all still here in the morning. But what, if anything, will change in employment, at least in the short term?
For all the talk of a Revolution, this is one area where that is unlikely to happen, for three reasons. Firstly, after 47 years together, the (now) EU/EEC/Common Market and the UK have a long-shared corpus of law. Moreover, the general philosophy of the two is very similar, an attempt to mediate relations in the ‘Master – Servant’ relationship central to employment law in an attempt at balance. Secondly, the bulk of such law in England and Wales has evolved within our own islands over time and often pre-dated (equal treatment) or outstripped (paid holiday) equivalent EU rules. Finally, and most obviously, there are no votes in tearing up worker protections and increasing uncertainty in employment. It would be an extremely brave government of any persuasion that set out on such a course.
So, if large scale changes are unlikely, what tinkering around the periphery might be attempted? In terms of interest for business, it is likely that attention might focus on the following areas:
For some in UK business, it has long been an irritant that, without an ETO reason (a change necessitated by an Economic, Technical or Organisational change), there can be no harmonisation in terms and conditions post-transfer, irrespective as to whether or not that was at least partially the reason for the acquisition in question. The length of time needed to elapse before changes could legally be introduced in such a case was speculated upon by the Judicial Committee of the House of Lords over 20 years ago, although answer came there none. It is certainly possible that HMG will seek to relax the law around harmonisation of terms and conditions, following the end of jurisdiction of the ECJ post-brexit (save for those areas retained, generally dealing with interpretation of the Withdrawal Agreement) over UK law.
Despite the UK having more generous allowances than the EU, certain decisions of the ECJ have proved unpopular with British business, as well as being legally confusing. The right to accrue holiday over sick leave is one case. Another is the ECJ decision that holiday pay should be calculated based on all aspects of remuneration (such as commission and overtime) as opposed to wages alone. This has created uncertainty as to how holiday pay should be calculated in practice, especially in atypical contracts. It is likely that this will be an area where intervention will improve clarity and certainty and, hence, reduce the risk of litigation.
The 2010 Agency Workers Directive harmonised Terms and Conditions for such after 12 weeks employment. It is fair to say that this has proved particularly unpopular with British business as it is believed to reduce or remove the flexibility inherent in the use of agency workers, and hence remove any practical incentive to utilise them. This is an area which can be expected to come under scrutiny fairly soon.
Of course, these are only predictions, ‘best guesses’. No one can authoritatively predict the future, even a future as rehearsed as Brexit. What can be said with certainty, however, is that knowledge in these areas will prove to be extremely valuable. Berlad Graham has unprecedented access to European Commission officials at the highest levels, and our solicitors have experience in dealing with them on behalf of clients. We cannot guarantee that we can obtain the answer you want from the Commission. We can, however, guarantee to identify the relevant official and open dialogue, putting your point of view.
In the current situation, that is certainly at least as much as any Law Firm can do!
Aidan Loy is our legal expert in Employment & HR law.