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9 April, 2016 - 01:06

Employment law and Brexit

It is common to blame “rubbish coming out of Brussels” for the complexity and unwieldiness (and therefore expense) of skirmishes with employment law, writes Tim Tyndall, employment law partner at Birketts.

Some suggest that it will all be easier if we break free of the shackles of European Directives whilst clinging to some Utopian vision of a US-style ‘hire at will’ regime.

The reality is somewhat different. A Brexit would have no immediate impact on UK domestic employment whatsoever and it would be for a post-Brexit government to make changes. And there’s the rub.

Would any government, of whatever shade, risk a wholescale reinvention, let alone have the resource or insight to do it?

Most of the head scratching problems in employment law of recent years have been of our own invention (statutory disciplinary and grievance procedures anyone?).

Proposed changes in tax on severance payments, the current hot topic of gender pay reporting, the National Living Wage which comes in on April 1 and the Modern Slavery Act are all our own creation and have little to do with our membership of the EU.

But what can we hypothesise might emerge in a post-Brexit landscape?

Employment lawyers and businesses dreaming that a side-effect of Brexit may mean more clarity in legislation might as well stop dreaming now. If anything, the legislation would become more complicated because much of what is in force now is by way of secondary legislation passed pursuant to the European Communities Act.

Repeal that and much of employment law falls away so it’s a non-starter. The more likely scenario would be some fine-tuning in a number of areas and some of the commentary suggests the following areas as candidates for change:-

  • Adjustment to the discrimination regime on the burden of proof and discrimination by association 
  • Yet another look at the Working Time Regulations in light of the impact of the Lock case on holiday claims and the accrual of holidays while on extended sick or maternity leave 
  • The Brexiters will be keen to point out that the right to carry holiday forward so far after the period of employment to which it relates has no health and safety significance therefore reminding us that this is a health and safety measure and nothing to do with employment law
  • Yet another bash at the Human Rights Act on employee privacy
  • Amendment to rules on agency workers
  • Boris and the City would welcome a relaxation of the constraints of deferred remuneration

But what about UK court decisions? Our courts are currently bound to follow the Court of Justice of the European Union’s (CJEU) rulings on applicable EU law. 

A Brexit could mean that those decisions would no longer be binding upon UK courts. All well and good but the UK courts have already followed CJEU decisions and built up a substantial body of case law determined entirely by those decisions. 

Accordingly, this UK case law will continue to be binding on lower courts within the UK and inevitably CJEU decisions would still form a persuasive precedent for UK courts given that the law will have its origin in the EU.
The likelihood is that there will be no appetite or resource to interfere with hard fought case law and moreover, there will be insufficient political will to interfere with finely-developed legislation on Trades Union and the like and the more ‘social’ aspects of current employment legislation.

The irony is that most of the difficulties and frustration in dealing with employment law disputes arise when confronted with a creaking and underfunded tribunal and civil justice system most recently presided over by Messrs Grayling and Gove who are firmly in the Brexit camp. 

It is to be hoped that in the coming weeks they will explain how an independent UK will be better placed to deal with employment disputes.

• Tim Tyndall can be contacted on 01223 326664 or via email at: tim-tyndall [at]

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