Brexit and employment law
One consequence of the ending of the UK’s transition period following its exit from the EU is that the Government is now free to make changes to employment law that would not have been possible before. There are some limits, however. The trade agreement that the UK has reached with the EU states that in the field of employment law, neither side will ‘weaken or reduce’ levels of protection ‘in a manner affecting trade or investment between the parties’.
It is worth noting that this obligation is not limited to those areas of employment law governed by the EU – it refers to employment law as a whole. Unfair dismissal is not an area covered by EU law, but if the government were to repeal it altogether that would clearly be a breach of the trade agreement. It is also clear that the wholesale repeal of the Working Time Regulations or TUPE is out of the question.
Nevertheless, there are many changes that could be made that would not be regarded as sufficient to affect trade, but which could be of importance to those interested in employment law. The rules on holiday pay for example have been causing difficulty for many years and there is a serious disparity between the annual leave provisions of the Working Time Regulations and the requirements of the Working Time Directive as it has been interpreted by the European Court. There is now nothing to stop the UK Government from providing clarity on such issues as the inclusion of overtime in the calculation or the effect of long-term sickness absence on an employee’s entitlement. If the Regulations were to be amended, the UK courts would have to apply the new rules without considering the requirements of the Directive.
Other changes that might be suggested include: making it easier to agree a change in terms and conditions following a TUPE transfer, capping compensation in discrimination cases and perhaps simplifying some of the rules on agency workers. How much appetite or capacity the government has for making such changes remains to be seen. But given the outstanding commitments from the 2019 Conservative Party manifesto on redundancy protection for new parents and additional leave for carers, a significant Employment Bill in 2021 is very much on the cards.