some critics consider these rights to be a burden on business, there seems little political appetite for their repeal or even for watering them down.
Transfer of Undertakings TUPE can attract a bad press, but the principle that employees should transfer when a business changes hands or is contracted out is often useful for business and is incorporated and priced into many commercial outsourcing agreements. For this reason, although there may be some businesses that would like to get rid of TUPE, it seems more likely that the government would make some small changes to make it more business friendly, such as permitting the harmonisation of terms following a TUPE transfer. Holidays and working time The right to statutory paid holiday under the Working Time Regulations 1998 (WTR) is also now broadly accepted. However, there are aspects of this right, and of other rights under the WTR, that the government might want to amend if not prevented from doing so by membership of the EU. Various European Court of Justice (ECJ) decisions on holiday pay are unpopular with UK businesses - for example, the right to keep accruing holiday while on sick leave and the fact that holiday pay should be based on all aspects of remuneration, not just basic pay. The government might choose to tweak these laws to make them more commercially acceptable, such as by retaining a right to paid holiday based on basic pay whilst limiting rights to accrue and carry over holiday pay. The UK may also wish to remove the cap on weekly working hours under the WTR. It is less clear that there is a demand to limit the WTR rights to other rest breaks or the protections for night workers. Collective redundancy consultation Collective redundancy consultation obligations were reduced by the last government. The requirement is now not particularly onerous and it is not clear what might happen to it following a Brexit. Trade unions are likely to fight against any proposal to remove it altogether but employees arguably do not feel strongly about this right (and many do not know about it). On the other hand, it is not obvious that businesses regard it as a burden that should be removed. Similarly, other collective consultation rights such as national and transnational works councils are possible candidates for repeal but the obligations imposed by them on UK businesses are relatively light. Legal precedent If we retain some EU law following Brexit, the UK courts are likely to continue to regard judgments of the ECJ on those laws as persuasive, even if not binding. In any event, pre-Brexit UK court decisions incorporating ECJ reasoning would remain binding on lower courts and tribunals. It is not clear how far UK courts would be able to treat exit from the EU as a material circumstance that would allow them to depart from precedent. They might do so, but could feel obliged to follow precedent in order to preserve legal certainty.
In conclusion, it seems unlikely that UK employment law will be transformed in significant ways, particularly in the short term.
Lewis Silkin has produced a series of articles on the implications of Brexit which can be accessed here .
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Brexit: Employment Law 17 October 2016
The House of Commons Library has published an interesting briefing paper which explains how UK employment law works in relation to EU employment law and what the effects of Brexit are likely to be.
A substantial component of UK employment law is grounded in EU law. EU employment law where it exists provides a minimum standard below which domestic employment law must not fall.
In some cases EU law has entrenched, at an international level, provisions that already existed in domestic law; for example, race discrimination and certain maternity rights. In other cases, new categories of employment rights have been transposed into domestic law to comply with emerging EU obligations. These new rights were often resisted by the UK government during EU negotiations; for example, agency workers’ rights and limitations on working time. Subject to the provisions of the EU withdrawal arrangements or a subsequent trade agreement, withdrawal from the EU would mean that UK employment rights currently guaranteed by EU law would no longer be so guaranteed. In consequence, a post-Brexit government could seek to amend or remove any of these.
The precise mechanism by which this could be achieved would vary depending on the right in question:
The Chartered Institute of Payroll Professionals
Policy News Journal
cipp.org.uk
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