At some point soon, ideally before the referendum on 23rd June, someone is going to have to work out what a Brexit would mean for the world of employment law. At present, as Winston Churchill would probably not have put it, there has never been a referendum where so little has been known by so many about so much.
That includes even immigration (the driver for the whole thing in the first place) but applies in spades to UK employment law, comprised as it is of an unholy brew of EU Directives which we may or may not have interpreted correctly, 1970’s-inspired industrial relations law, case authorities and a variety of entirely self-inflicted wounds like the shared parental leave regime. The short point is that no one really has a clear steer on this – the UK would be in totally uncharted waters here, though that is unlikely to deter the running of hundreds of legal seminars on “HR and Brexit” where law firms demonstrate with the aid of handouts and PowerPoint that they don’t know either.
The obvious starter is of course that exit from the EU would not by itself change any of our domestic employment law at all. It would merely allow us some scope to do so if we wished. So what would the UK change? There could be some chiselling around the edges of the discrimination regime, perhaps removing the reverse burden of proof or discrimination by association. The Government could look again at some of the less-intended side-effects of the Working Time Regulations, in particular the accrual of holidays while on extended sick or maternity leave, and the right to carry them forward so far after the period of work to which they relate that they can no longer have the remotest health and safety significance. Maybe a formal disconnection from Europe would in time permit a reversal of the WTR-based Lock type holiday pay claims. Perhaps there would be support for a repeal of those parts of the Human Rights Act relating to rights to employee privacy or some tweaks to the agency worker rules.
Or perhaps there would be none of those things. If you were to ask most UK employers which bits of EU-based employment law they would soonest ditch, it is more than possible that there would be little or nothing. In reality, they might cry that all they want is just employment law which is stable, clear and strikes a reasonable balance between the interests of the parties. They will already recognise that UK employment law is a great deal easier to live with than some of its EU equivalents, and that a significant shift further towards the interests of business and away from those of the individual could be an active deterrent to the UK retaining or attracting the best global talent. In addition, by the time the terms of any Brexit had been finalised, the Government would have its sights set firmly on the next election. It is therefore hard to see that it would then set about any material dismantling of the employment rights of the bulk of the electorate, wooing them with such temptations as longer hours, fewer and less-paid holidays, reduced freedom from discrimination, etc. Any attempt to re-write TUPE would inevitably end up looking pretty much like TUPE. It is impossible to see that the trade union movement would wear any dilution of the collective redundancy consultation rules. The financial services industry might welcome a relaxation of European limits on remuneration but it is unlikely that the Government would see that as a vote-winner either.
I think employers would prefer to rail against law which is vague, over-engineered, under-informed and basically unnecessary. Step forward the Modern Slavery Act, gender pay reporting and the proposed revisions to tax on severance payments. That is even before we get to shared grandparental leave, a prospect so dispiriting and unnecessary that it is little surprise that no one is going to do anything about it until 2018. The common thread in all of these, it will not have gone unnoticed, is that none of them is driven by our membership of the EU.
So while the pundits and politicians can advance their violently different but all equally speculative opinions on what would happen as a result of a Brexit, let us suggest something that would not – any significant change in UK employment law for the foreseeable future.
However, that there may be no change in employment law does not mean that a Brexit has no impact on UK HR practice at all. For more on that, stay tuned.