Brexit: will it really matter?

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You'd be forgiven for hoping that you'd open this month's newsletter and see no mention of Brexit. But this is something that's not going away, and given how important it will be to the future of the UK, it would be remiss of us not to mention it in our first newsletter since the big decision was made.

When it comes to employment law, the question on everyone's lips is: will it really matter?

As was often repeated by the Remain campaign in the build-up to the referendum, much of UK employment law does indeed derive from the European Union (EU). The list includes: protection against discrimination; family friendly rights; protection of employment on the transfer of an undertaking (TUPE); collective consultation obligations; rights for agency workers; limits on working time and the right to paid holiday. On first glance, the implications of Brexit on UK employment law do look a little scary.

However, the fact is that in most of these areas (except for working time, collective consultation and rights for agency workers), UK employment protections either pre-dated or have 'gold-plated' EU law. For example, there was also protection in the UK against discrimination on the grounds of race, sex and disability before the EU Equal Treatment Directive. Women in the UK returning from maternity leave were entitled to come back to the same job before EU legislation weighed in. In the UK, mothers are entitled to take up to 52 weeks' maternity leave (if they take both ordinary and additional leave) – the EU minimum requirement is for just 14 weeks. The EU Working Time Directive requires member states to pass legislation entitling workers to a minimum of 20 days' paid annual leave – in the UK, we have at least 28 days. A further example is found in TUPE – the concept of a service provision change (which relates to outsourcing arrangements) isn't found anywhere in the EU Acquired Rights Directive – it's a UK invention.

If we look again at those family friendly rights, the concept of shared parental leave is a UK legislative creation. The government has announced plans to extend the right to this kind of leave to grandparents. Whatever the uptake of shared parental leave (which is believed to be low) and, should it be implemented, shared grandparental leave (which will surely be lower), it is clear that the UK is trying to offer rights to support working families, not take rights away from them. Leaving the EU is unlikely to change this.

Where we are most likely to see changes is in how the Courts interpret employment legislation. Depending on the terms of the exit from the EU the UK is able to negotiate, the decisions of the European Court of Justice (ECJ) may no longer be binding on the UK. This means that in future it would, for example, be open to the UK Courts to determine whether holiday pay is limited to basic pay or should include commission payments and (for employees with normal working hours) overtime. We could, therefore, see the nuances of UK employment law develop in quite a different way from the ECJ case law.

There is of course a risk that a future government might want to substantially dilute UK employment rights, and Brexit will make this more of a possibility. However, as the result of the referendum has shown, we live in a democracy (for better or for worse). With that in mind, no government would dilute employment rights substantially (if at all) if they wanted to stay in government.

So, when it comes to employment law, will Brexit matter? Probably not that much. Although the true answer remains that, for now (and probably for quite some time to come), we just don't know.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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