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First things first – I’m not advocating voting one way or the other in the forthcoming referendum.  I’m not even convinced I have made up my own mind yet whether we should remain or Brexit.  I’ve been having a look at the various aspects of employment law and what possibilities an exit from the European Union could mean.  My aim in my work life is to ‘untangle’ the complexities of employment law, and this is what I’ll try and do here.

One thing that has not been widely publicised is that the UK has to give 2 years notice to leave the EU.  During this time it is likely that negotiations would be held on the terms of the exit and ongoing trade (and other) arrangements.  Although 2 years sounds like a long time, it’s not really so long when you consider the amount that needs to be examined considered and negotiated.  It is likely that the negotiations will take 15 – 20 years or more.  We know that the USA has been negotiating on a trade agreement with the EU for at least 12 years and they are not yet in agreement, so we have this as an example.  It is not simple!

In employment law terms, we have legislation governing discrimination, employment rights, equal pay, regulations regarding the transfer of employment to a new company owner, working time and holiday, maternity paternity and other family friendly rights, agency workers – the list goes on and on.  And that’s just in employment law……

In principle, if there is a vote to leave the EU – any legislation that originally comes from the EU could all be repealed.  But if we look further into the legislation we see that some of it pre-dated the EU provisions, including race and disability discrimination laws, UK equal pay, and a right to return to work after maternity leave.  These things at least would be unlikely to be repealed, although they could of course be amended.

Also, some of it is already enshrined through our own UK legislation – take as an example the Equality Act 2010, which is 1) a UK Act and 2) an Act that would be highly controversial to repeal.  I cannot imagine that many employers would lobby for the Equality Act to be repealed – it gives protection from all forms of discrimination, plus harassment and victimisation, and what employer is going to publicise not wanting these protections to be in place.  However, it could be amended to provide an upper limit to damages for discrimination, which are currently unlimited.  So whilst the Equality Act would be likely to remain in place, it may well be amended.  So the effect of a Brexit on discrimination etc could be minimal, which is reassuring at least.

Of the pieces of legislation that are not enshrined in UK statutes, it is the transfer of undertakings regulations that are most likely to change – known as TUPE.  Some UK businesses would like to get rid of these regulations altogether, which is unlikely to happen.  As easy as they are to circumvent, they do at least provide at least a small amount of protection to employees whose employer is taken over by another company.  Whilst we would probably not lose TUPE altogether, changes to these regulations may well make it easier to harmonise terms of employment after a take-over, which could make things simpler for both employer and employee.

Another target for change – or complete repeal – would be the regulations on agency workers, which are over complicated, unpopular with business, and have not been taken on board to the extent that would make them difficult to get rid of – and I think this is likely to happen.

One piece of legislation that is widely acknowledged to be out of date is the Working Time Regulations, which derive from the EU Working Time Directive, and I think the effect of a Brexit would be neutral here, as it is likely that they will be updated in any case – whether we stay or leave the EU.  It is high time they were brought up to date to bring them in line with a number of decisions in our own courts and in the European Court of Justice on holiday pay during long term sickness, on holiday pay being based on all remuneration not just basic salary, and on the maximum number of hours to be worked in a week.  It is not so clear whether there would be amendments to limit the rights to rest breaks or the protections for night workers in our current Regulations, which would not be favourable to the workers who have the benefit of this protection currently.

There is also the ongoing relationship with the EU to consider if we do vote with the Brexit campaign.  The negotiations around ongoing trade agreements are very likely to include elements of UK employment and social responsibility.  It is therefore likely that an exit will mean the current legislation being modified but not repealed, to put it into terms that are more palatable to UK business.   Those of us in business may be pleased with this – if we are still able to trade in the same way, of course which is by no means certain.  Those of us employed by a business face an equally uncertain future, with many possible changes.

At the end of this exercise I have still not made my mind up whether to vote remain or Brexit.  These are certainly uncertain times!

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