Is A Post-Brexit Shake Up Of Employment Law On The Cards?

It was recently reported that the Government has begun a post-Brexit review of UK employment law. This was confirmed by the Business Secretary, Kwasi Kwarteng, on Tuesday who was quick to insist that any changes would not lead to a reduction in worker protection.

This follows on from a Financial Times report last week that some employee rights and protections under the EU’s Working Time Regulations 1998 could be overhauled by the Government. These current protections afforded by the regulations relate to the 48-hour limit on the working week, employees accruing holiday whilst on sick leave, rules in respect of rest breaks, and the inclusion of overtime pay when calculating some holiday pay entitlements.

It has also been reported that the Government want to remove the requirement for employers to keep records of their employee’s working hours.

Brexit

At 11pm on 31^st December 2020, the UK left the European Union (EU) following the end of the transition period with a last-minute deal in place and a framework for future negotiations with the EU. Whilst many existing EU laws will remain in place for the UK, there is scope for laws to be changed or amended.

In respect of employment law and the impact that Brexit might have for employers and employees, it is unlikely that there will be any immediate changes. This is primarily because the agreed EU-UK Trade and Cooperation Agreement includes provisions which mean that the UK and EU must not reduce the existing level of employment rights in force on 31^st December 2020, in respect of:

• Employee rights at work
• Workplace health and safety standards
• Fair working conditions
• Standards of employment standards
• Information and consultation rights
• Restructuring of undertakings

However, the provisions only relate to trade and/or investment. Consequently, the UK can choose to change particular employment laws that are in place, should they not impact trade or investment.

What areas of UK employment law could potentially change following Brexit?

Working Time Regulations

These are the rights mentioned in the Financial Times article mentioned above.

These EU imposed regulations were introduced to the UK over 20 years ago and have never been popular due to the principal rights (e.g. the maximum working week) and the difficulty in interpreting the principles, as well as the resulting cases about accruing holiday whilst off sick and the calculation of holiday pay.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

Whilst it is expected that the UK will retain the rules on business transfers, there could potentially be changes to them. One change to the rules could be to allow businesses who take on new employees under TUPE to harmonise their terms and conditions with their existing workers.

Discrimination laws

As with TUPE, there are unlikely to be any substantial changes in respect of discrimination laws under the Equality Act 2010, as the Government has clearly stated that it won’t be reducing employee’s protections from discrimination.

That being said, there may be a re-introduction of a financial cap on compensation amounts in discrimination claims, as is currently the case with unfair dismissal claims.

The Agency Worker Regulations 2010

As with the Working Time Directive, these rights have never gained much popularity in the UK and following the Government’s Good Work Plan legislation, introduced in December 2018, agency workers, and gig economy and zero hour contract employees are actually better protected.

This is one area of employment law in the UK which could see a complete overhaul.

Collective redundancies

Another potential change could be in relation to the need for employers to consult collectively with their employees prior to giving them notice of redundancy. This change could be made to reduce the prescribed periods of consultation or compensation payable if a breach of the obligations takes place.

Maternity rights

Some businesses are not keen on the EU law which offers parents up to 18 weeks per child of unpaid parental leave as this can be quite disruptive. This has been highlighted as a particular issue for small organisations.

However, the UK’s current maternity rights extend beyond those required under EU law and have been in place for some time, so it is not likely that these rules will be removed or changed.

What employment law changes have there already been as a result of Brexit?

The UK’s new immigration system came into force on 1st January 2021, which is a points-based system that aims to lower the amount of low skilled migrant workers (both EU and non-EU citizens) in the UK, whilst still ensuring that businesses in the private and public sectors can meet their skills requirements.

The introduction of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 will mean both EU and non-EU citizens are treated the same. The key aspects of the points-based immigration system are as follows:

• It will limit the number of low skilled migrant workers and will focus on UK businesses employing overseas employees for higher skilled job roles – such as doctors and scientists.
• Those looking to enter the UK from the EU will be allowed to visit for six months but if they want to stay longer than this then they will need to apply for a visa.
• Non-EU residents looking to reside in the UK will be given more flexibility when applying for a visa than under previous immigration laws.
• A salary threshold of £25,600 for people wishing to remain and work in the UK. Although this figure will drop to £20,480 for “specific shortage occupations” – these roles are specified as nurses, psychologists, civil engineers or roles which require relevant PhDs.
• The education qualification threshold for a job role will be lowered to include those educated to A-Level (or Scottish Highers) standard. The previous level was degree/graduate standard.

Further information on the new immigration system can be found here.

Comment

The Labour party and the Trade Unions have treated the news of the review with scepticism and have commented that they expect rights to be eroded.

Whether this will be the case remains to be seen, but the changes to the Working Time regulations which have been specifically mentioned, were generally anticipated by commentators since Brexit negotiations began.

For the time being, employers should continue to follow the rules as in force at the moment.