Date: 07/04/2016 | By: Liz Painter

Kirsten Cluer of Cluer HR talks about how the potential exit from Europe will impact on employment law…

 

As this debate moves along, we thought it worth highlighting a few points about the possible impact an exit might have on employment law in the UK. The influence of EU law is wide reaching – so much so that it is easier to look at those areas of employment law that are UK based rather than to list all of those that have their roots in EU law.

 

UK and EU based laws

Unfair dismissal law is a UK creation as is the national minimum wage and the right to a redundancy payment. Almost every other area of UK employment law – discrimination, family leave, TUPE, atypical work, collective consultation, agency workers and working time – is based on EU law. Britain’s membership of the EU means not only that we must implement laws in these areas but also that the interpretation of our law is subject to the rulings of the European Court of Justice (ECJ).Importantly, if there is a conflict between the Court’s interpretation of a Directive and the way in which it has been implemented in the UK, the Court’s interpretation must prevail. In recent years the UK courts have become more and more willing to rewrite the words of statute in order to make sure that it does. 

 

Importantly, if there is a conflict between the Court’s interpretation of a Directive and the way in which it has been implemented in the UK, the Court’s interpretation must prevail. In recent years the UK courts have become more and more willing to rewrite the words of statute in order to make sure that it does. 

 

Would the EU based laws go?

An exit from the EU doesn’t mean all EU laws would vanish, and some will definitely remain, but exit from Europe will impact on employment law.

 

It is inconceivable that any UK Government would choose to repeal discrimination law or maternity leave just because it was no longer bound by EU rules. A more controversial measure like TUPE might well survive too as so much of our contracting industry operates on the basis that employees can simply be transferred to a new employer when a service contract changes hands. A Conservative government would certainly want to do something in relation to the Working Time Regulations 1998 (SI 1998/1833), but it is difficult to imagine any government repealing the right to take paid annual leave. 

 

In any event, reform takes time. Dismantling EU law in the UK would be a complicated and drawn-out process.

 

A government plan?

Since the government’s official position is to remain in the EU, there is no clear statement about a plan on employment law following an exit, but there may be a clue in a 2011 report by Adrian Beecroft commissioned by the coalition government. He recommended reintroducing a cap on discrimination claims arising from dismissal. That would have been impossible then and now, but it could happen if the UK leaves the EU.

 

Trading arrangements, post Brexit

It is not clear what price the EU will impose on an exited UK in return for favourable trading arrangements along the lines of Switzerland or Norway but the deal may include the UK having to maintain all existing European employment law so as not to skew the market. In which case, the UK will be back where it was.

 

The biggest possible change?

One of the most significant changes might be in the public sector.  Currently, employees can directly enforce EU directives against their employers, sometimes gaining rights which go beyond national legislation (e.g. in areas of collective redundancies and discrimination).  On day one following the UK’s departure from Europe, those directly enforceable rights would go.

 

If you’d like any advice on how your business may be affected by a withdrawal from Europe, or how potential exit from Europe will impact on employment law, please don’t hesitate to get in touch on 01386 751740 or at info@cluerhrsolutions.co.uk. Click here for more information about Cluer HR.