Brexit and IndyRef2: What does it mean for employment law?
A future government under pressure from business would be unconstrained from deregulating UK employment law, writes Luke Hutchings
In today's tactical age of gimmicks, buzzwords, and a political landscape in global turmoil, there is nothing more frightening to the Westminster elite than the phrase 'Indyref2'. Scotland voted strong when it came to remaining in the European Union and if you are inclined to believe the media hype '“ this could spell the end of the United Kingdom as we know it.
In turbulent political times like these, it can pay to be future thinking when it comes to possible legal changes. One of the warnings put forward from the 'Remain' camp in the EU referendum was that a future Conservative government, liberated from Europe, might swiftly unpick many hard-won employment rights that Brussels bestowed upon us. It's safe to say that some individuals on the 'Leave' side have been enthusiastically calling for a bonfire of 'red tape' following the Brexit decision, including employment rights.
While many of us are quick to speculate, it's important to remind ourselves that the notification under article 50 has yet to be delivered. There is clearly a long road ahead, full of twists and turns. At Taylor Rose TTKW, it is our belief that the task of delivering Brexit will be a task so monumental and all-consuming that any substantive changes to employment law won't be implemented for some time.
In the long term, it's fair to say that there will be change; it's likely this will be linked to the deviating paths that Scotland and the rest of the UK might take because of the decision to Brexit. Scotland is notably championing maintaining close ties to the EU after we exit. With their strong social democratic tradition, it looks unlikely that Scotland, of all the home nations, would dilute employment rights after Brexit. It is reasonably possible that Holyrood will continue to enshrine EU employment protection into Scottish law, in the same way it did previously '“ with a mind to ensure a high level of equivalence between the jurisdictions.
Conversely, south of the border and with a distinctive lack of effectual opposition, Conservative governments of the future may be tempted to bend to pressure from businesses and cut through what is often considered to be employment red tape. Many employee rights derive from EU law, and theoretically, these could be repealed after leaving.
The complex legal protection that surrounds transfers of undertakings (TUPE) may be the first to go if the government were to repeal the European Communities Act. It is less likely that such deeply engrained employee rights as anti-discrimination rights, health and safety rights, and redundancy law would immediately be cast upon the bonfire; the UK government has often implemented legislation that provides a higher level of protection to employees than is required under EU law and what's more, is that they have signed international treaties, that are comparatively weak, but do go a way to protect some workers' rights.
However in reality, upon leaving the EU, if a future government was committed to deregulation due to external pressure from businesses, they would be unconstrained in the event.
Perhaps the highest profile element from employment law derived from the EU is the working time directive. Before this was introduced in UK law, workers did not have the statutory right to a minimum amount of paid annual leave, although in a nod to our governments generous 'gold-plating' of EU law, they gradually increased entitlement from 20 to 28 days including bank holidays.
In conclusion, laws derived from the EU are deeply embedded into UK law. To undo these laws would require new legislation and would be an extremely complex procedure. It's also important to remember that recent changes in employment law, such as dismissal periods and the introduction of tribunal application, fees stemmed from the UK. Any current analysis on what the future looks like, is based on speculation and dependable observation; ultimately working rights will depend on the way our future economic and political relationship is shaped '“ any attempt to unpick EU derivative law could present challenges when it comes to remaining in the single market or European Economic Area.
Luke Hutchings is a partner and head of the employment department at Taylor Rose TTKW