REWARD INSIGHT
UK employment law post-Brexit
Michael Farrelly, solicitor at Excello Law, explains what might happen
A fter the unexpected result of the UK’s referendum on leaving the European Union (EU) on 23 June there has been widespread concern regarding the legal implications of Brexit. For many, it is the ramifications on UK employment law that are the chief causes of unease, as workers’ rights currently safeguarded by the EU will be open to the possibility of revocation once the UK has withdrawn. In October, the Government announced its ‘Great Repeal Bill’ which will be enacted two years after the triggering of Article 50. The bill is intended to ease the transition period and mitigate legislative fall-out. Once the bill comes into action, all current EU legislation will be immediately transferred into UK law which the Government will then be free to repeal, retain and amend at their volition. While the direct transference of legislation into UK law might seem simple in theory, many of the finer practical details are ambiguous. A briefing paper – Legislating for Brexit: the Great Repeal Bill – which was placed in the House of Commons Library on 21 November 2016, states: “The Government has stated that the Great Repeal Bill will delegate statutory powers to enable Ministers to make changes, by secondary legislation, to give effect to the outcome of the negotiations with the EU ‘as they proceed’.” This means that individual ministers could be given the power to repeal and amend legislation without changes being subject to parliamentary scrutiny or approval. The House of Commons Library describes the process as “potentially one of the largest legislative projects ever undertaken in the UK” and maintains that the procedure will be complicated further if every stage must be approved by Parliament. The initial sense of increased relief
and certainty at the announcement of the Great Repeal Bill has been somewhat diminished by the High Court ruling on 3 November 2016 when the Government was told that it would first have to attain the approval of Parliament before it could begin negotiations. While it is difficult to foresee the full implications of the ruling at this early stage, it is clear that the Government’s attempts to maintain executive control have been undermined and it is highly likely that the triggering of Article 50 will now be delayed. Confusion has been exacerbated further by a second court action launched in November by the pressure group British Influence. The group maintains that it would be illegal for the Government to leave the wider European Economic Area (EEA) given that it only has a mandate to leave the EU. ...power to repeal and amend legislation without changes being subject to parliamentary scrutiny or approval While such setbacks may appease some in the employment sector, there are still causes for concern as many areas of employment such as recruiting from overseas could be complicated once Brexit has taken full effect. It also remains unclear whether employers will be allowed to retain EU nationals already working for them. The Government has so far not offered any guarantees regarding the continuation of residency despite the Leave campaign’s persistent reassurances to the contrary in
the run up to the referendum.
While the immediate changes after the triggering of Article 50 are likely to be marginal, the extent to which current employment rights will be retained in the long-term is less certain. While Prime Minister Theresa May and Secretary of State for Exiting the European Union David Davis have downplayed the likelihood of legislative change, it would appear that their views are not shared by the Government as a whole. Many leading Conservative party figures have in the past expressed a desire to cut back on regulation that they view as detrimental to small businesses: “I envisage there being absolutely no regulation whatsoever – no minimum wage, no maternity or paternity rights, no unfair dismissal rights, no pension rights – for the smallest companies that are trying to get off the ground, in order to give them a chance.” – Andrea Leadsom, 2012 “The weight of employment regulation is now back-breaking: the collective redundancies directive, the atypical workers directive, the working time directive and a thousand more.” Boris Johnson, 2014 Of course, a ‘hard’ Brexit is not a foregone conclusion and a softer deal with the EU may result in minimal changes to the rules regarding visas for the long-term. It is nonetheless essential for the Government to take steps to establish systems that will allow employers and employees to be prepared for any changes that may occur. The Government’s opacity hitherto has resulted in an information vacuum which many have been quick to fill with rumours, speculation and hysteria. It is vital that the Government eases current anxieties by taking greater steps to provide concrete facts and information. At this early stage it would be wise for employers to assume that all scenarios are possible and to prepare for them thoroughly. n
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| Professional in Payroll, Pensions and Reward | February 2017 | Issue 27
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