Brexit Q&A: Answering your Employment Law questions

Did all UK employment rights originate in the EU?

In short, no. Whilst a significant proportion of the UK’s employment law comes from the EU, it might surprise you that the following (and a few other) employment rights originated here in the UK:

• Unfair dismissal
• Minimum wage
• Statutory redundancy pay
• Paternity leave
• Shared parental leave
• Right to request flexible working

Further, as discussed below, some UK employment rights are more generous than their EU equivalents.

In broad terms, how might Brexit affect employment rights?

Workers may fear that leaving the EU will harm their rights at work, whilst employers may hope for a relaxation in those rights. However, if or when Brexit does eventually happen, we consider it unlikely that employment rights, some of which originated here and/or are more generous than their EU equivalents, will see more than minor changes. Further, we consider that this will be the case whether or not we leave the EU with a comprehensive deal – unless there is a substantial change in the politics of the day. In this regard, the current Government has made commitment after commitment to protecting existing workers’ rights and the vast majority of the House of Commons appears to be unified behind this. However, UK employment rights advancement might not necessarily keep pace with the EU in the future.

Will there be fewer days of holiday leave?

We consider that statutory holiday entitlement, a favourite of workers and generally accepted by employers, will not be affected after Brexit. However, many employers strongly disagree with previous decisions of the European Court of Justice in relation to holiday entitlement, such as allowing it to be earned during sick leave, the carrying over of it in cases of long-term sickness absence and requiring pay for it to be calculated with reference to all aspects of pay (not just basic salary). Therefore, these may be areas in which the Government will intervene.

Will family rights be weakened?

There is a mixture of UK and EU rights in this area and it might surprise you that in some respects, such as in regard to UK maternity leave provisions and pay, the UK rights are more generous than their EU equivalents. Additionally, both the right to shared parental leave and the right to request a flexible working arrangement originated here in the UK. Therefore, unless the political landscape changes significantly, we do not expect to see any changes in this area after Brexit.

What about discrimination protections?

We consider that businesses are unlikely to push for a weakening of the discrimination protections and that this subject is unlikely even to feature on the Government’s radar. However, there is some thought that a cap might be imposed on discrimination compensation, as this is currently unlimited.

Summary

The employment law landscape might have looked similar today even if the UK had not joined the EU, because protecting workers’ rights has long been a significant consideration here in the UK. As it is, subject to the decisions of the Government of the day, a few limited changes to these rights may be made post Brexit to appease employers, but we do not anticipate any drastic changes.