The Impact of Brexit on Employment Law

Every employer in the UK must comply with their obligations under employment law and remain aware of any important changes. With key employment law protections in the UK originating from the EU, being aware of potential changes as a result of Brexit is no exception. Such protections include rights and obligations as a result of TUPE, working time regulations, collective consultations obligations and discrimination and family leave rights. Whilst the risk of potential changes in the short term is low, it is necessary to consider the longer-term impact of Brexit on UK employment law in order to be prepared in good time.

What is changing and what is not?

Following the UK’s departure from the EU on 31 January 2020, the UK entered a transition period in which all EU laws and rights remained the same. This period is due to end on 31 December 2020.

Following the end of the transition period, UK employment law is not set change significantly in the short term however, protections derived from EU law such as the TUPE regulations, will remain applicable but on a different constitutional basis. It could therefore be possible in the short term, for alternations to be made to such legislation if necessary by the appropriate body but drastic changes are unlikely. The UK will also not be required to implement any new EU employment legislation and courts and tribunals will no longer be bound by decisions of the European Court of Justice.

Looking ahead, when considering the key employment legislation that have derived from the EU, the following can be expected:

• Discrimination law – The Equality Act 2010 contains provisions such as on equal pay that implement EU directives and will become retained EU law. The Government have made a firm commitment to ensuring rights and liabilities under the Equality Act are protected and no significant changes are expected. Commentators have however suggested that compensation for discrimination which currently has no limit, could be capped in the future.
• TUPE- the TUPE Regulations 2006 derive mainly from EU legislation and small changes such as to the language and to make it more business friendly may be made by the government, although no immediate changes are expected.
• Working Time Regulations- again no immediate changes to these regulations, which guarantee rights such as paid holiday, are expected however, the Government may decide to amend some controversial aspects of the legislation in the future. These aspects include potential changes to the weekly working hours limit of 48 hours, the way holiday pay is calculated and the accrual of holiday entitlement during sickness absence.
• Collective Redundancy Consultation- no changes are expected and indeed any amendments after Brexit would be fiercely resisted by Trade Unions.
• Agency Workers- in light of the recent change to increase the protection of Agency workers in April, which we have outlined here, no changes to this area of law is expected, despite the regulations being unpopular with employers.
• Freedom of movement- from 1 January 2021, EU nationals arriving in the UK will require a visa to do so and may require sponsorship to work, this will impact on recruitment practices such as right to work checks. Please find more detail in our outline of the changes to immigration law following Brexit here.

What action to do you need to consider now?

Employers do not need to be concerned about immediate effects of Brexit on employment law as protections derived from the EU will remain in place following the end of the transition period. However, as outlined above, there are potential changes that the Government could make in the future as they will no longer be restricted to do so. For now, we would urge employers to simply remain aware of any potential changes and keep up to date with developments that could impact their workforce.