Bothered by BREXIT
BREXIT – more about the labourers than the law?
Like it or not, we have to think about what employment law changes might occur over the next 2 years if UK voters decide, on 23 June 2016, to “leave” rather than “remain”, when answering the question: “Should the UK remain a member of the European Union or leave the European Union?”.
However just saying: “The following laws don’t apply any more” isn’t a practical option.
The reasons are that unpicking 40+ years of jointly developed EU and UK legislation would be much more difficult than the development of UK legislation since joining the EU in 1973.
Why would it be difficult?
– the 100s of EU-influenced primary UK legislation (e.g. the Equality Act 2010) could remain in place and could just be interpreted differently;
– but the 1000s of EU-required secondary regulations (e.g. the Transfer of Undertakings (Protection of Employment) Regulations 2006) were created by the European Communities Act 1972 to apply EU law locally – so repealing that Act would result in a vacuum with no UK legislation at all – the hook on which the regulations hang wouldn’t exist any more.
Preserving the existing legislation (but just interpreting it differently so as to sit more comfortably within a UK domestic business environment) seems the likely option.
However the fact that the Supreme Court:
– would have to get out of the habit of referring things to the European Court of Justice if a decision were on the “difficult” side; and
– would no longer have to make UK legislation conform with the spirit and intention of EU legislation or EU cases (but would still have to conform to international business partner requirements – see the recent data protection Safe Harbour problems for how even the employment-law “lite” US has to do that),
there would still be a recipe for chaos.
In that context, any changes might be minimal in practice, given that:
– most of the EU laws we engage with have become workplace norms that seem to work in practice (possibly excluding shared parental leave and the question of agency workers…);
– many UK entitlements already exceed EU minima, and
– social conventions and expectations have changed immeasurably since EU employment law began its influence.
There are also two other factors:
– first, from the moment a decision is taken to leave the EU, the answer “EU law requires it” will cease to be an acceptable response to queries about why something is or isn’t being done – so there will be a need for government to develop more cogent policy positions;
– secondly, because the UK will still want to be a competitive and desirable place to live and work and will not want to be left behind by EU developments, there will still need to be a UK-specific (but EU sympathetic) approach to employment law and HR issues. Otherwise (despite the UK potentially developing a less restrictive employment regime) EU multinationals might choose to headquarter or develop their businesses elsewhere; and UK multinationals might not be welcome in other host countries.
So – back to the original question – what (if anything) might change in employment law?
My prediction is: initially, not much at all; later on, perhaps a gradual re-evaluation. Even then, it’s sensible not to expect much change, because the UK’s habit of gold plating EU regulations was driven by the UK’s innate appetite for over-regulation, and if we look further afield to Australia (which is not beholden to Brussels, but is dependant on business standards), we find that much of its legislation is aligned with European concepts anyway.
But forget about the laws: what about the labourers? It’s possible that the much more relevant problem would be the effect of a BREXIT on the free movement of workers within the EU: if the UK imposes barriers to this, many UK employers will find themselves having no, or a much reduced staff and will have to move into the sponsored work-permit regime (with the complexities that involves).