Brexit? Leaving could lead to changes in employment laws

23 June 2016

Louise McAloon, Partner, considers the implications of the outcome of today's vote to decide whether or not to remain within the EU, on employment rights and workplace protections.

Brexit?  Leaving could lead to changes in employment laws

As the public decides whether or not to remain within the EU, the latest polls indicate that the Leave and Remain campaigns are neck and neck and today's vote will be a close call, one way or the other.

The outcome will undoubtedly shape many aspects of our future including employment rights and workplace protections.

Leaving could lead to changes in Employment Law. Aside from unfair dismissal rights which are UK 'born and bred', the majority of UK employment laws either stem from or are heavily influenced by EU legislation and case law from the European Court of Justice.

From maternity rights, working time provisions, agency workers' rights, TUPE protection to holiday entitlements, EU law plays a pivotal role in our employment laws and basic workplace protections.

In the event of a Brexit, the UK Government would in theory be free to amend or revoke EU based employment protections, but given many aspects of EU law have become enshrined in our employment practices and have received broad support across the political spectrum, it remains to be seen whether any significant changes in employment law would follow.

Given the two-year negotiation period, changes are unlikely to happen overnight and any trade agreement would likely include an amnesty, whereby existing EU migrants could stay (at least for a reasonable period) in return for permission for UK citizens abroad to remain where they are.

Many features of the UK employment law landscape exceed the legal minimums laid down by EU regulations.

For example, the minimum paid holiday entitlement required by the EU is 20 days per year, the UK gives 28 days.

EU regulations require that new mothers receive a minimum of 14 weeks' maternity pay - the UK Government provides 39 paid weeks.

Parents in the UK can avail of unpaid parental leave up until the child is aged 18 when the EU only requires that it be available until the child is eight years old.

The UK has itself introduced many employment protections independent of the EU and of its own volition including shared parental leave, gender pay gap reporting and the National Living Wage. That said, recent ECJ cases have shifted the goalposts in relation to holiday entitlement - allowing holiday entitlement to accrue during sickness absence and to be carried over into the following year and further ruling that holiday pay should reflect normal remuneration including overtime, bonuses and commission - not just basic pay.

These issues are causing significant uncertainty and costly litigation for employers across the UK and Northern Ireland.

Outside the EU, the Government would be free to adopt its own position in relation to such matters and could for example also choose to cap compensation payments for discrimination claims without altering the substance of our discrimination laws.

Such laws are generally recognised by both employers and employees as being a necessary and welcome protection for our workplaces by prohibiting less favourable treatment on grounds of gender, sexual orientation, race, religious belief, political opinion, disability or age.

  • Louise McAloon is a partner specialising in employment law in Worthingtons Solicitors, Belfast. For advise please see www. worthingtonslaw.co.uk or telephone 028 9043 4015

 

Belfast Telegraph

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