A significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers
Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period, unless and until altered by the government.
On 6 March 2019, the government published a Policy paper, Protecting and enhancing worker rights after the UK withdrawal from the European Union, in which it committed to ensure that UK workers’ rights remain aligned with EU employment protection even after the UK’s withdrawal and in doing so proposed draft clauses to include in the EU (Withdrawal Agreement) Bill.
In reality, these provisions were merely reporting obligations and would not enshrine workers’ EU-derived rights or commit the UK to keeping a pace with EU legislation on workers’ rights after the end of the transition period.
Following the General Election on 12 December 2019, the European Union (Withdrawal Agreement) Bill was reintroduced into Parliament in an amended form that did not include these provisions and they are also not included in the final Act. The government has said that it will introduce an Employment Bill, but it is currently unknown whether this will include any specific provisions dealing with divergence from EU standards.
For the time being therefore, other than in some very specific sectors (eg Finance), or in connection with freedom of movement and immigration, there is not anticipated to be any significant immediate changes to employment law and workers’ rights.
The shape of a deal brokered over the next few days or weeks, may also influence this if a level playing field on such matters is or is not agreed. What the future may hold is unknown therefore at present, but some key areas have been the subject of repeated speculation:
- It would seem unlikely that the Government would repeal the Equality Act, however some have suggested that, free from EU constraints, a cap could be imposed on discrimination compensation (as is the case for unfair dismissal for example), where currently it is unlimited. Another possibility is that the government could change the law to allow positive discrimination in favour of under-represented groups in ways that is not currently permissible under EU law.
- TUPE is never popular amongst employers and there is plenty of opinion supporting changes to make it more “business friendly”. The classic area is that of making it easier to harmonise terms following a TUPE transfer (which is not permitted under EU law).
- The right to statutory paid holiday is now well established and again it seems unlikely these rights would be removed. Areas for potential change, however, include the amount of holiday pay (which currently includes overtime and commission payments etc), as well as the accrual of holiday and carry over rights whilst on long term sick for example.
- The Agency Workers Regulations 2010 (SI 2010/93) (AWR 2010) (which implement the EU Temporary Workers Directive) are seen as a possible candidate for revocation altogether, as they are complex, unpopular with businesses, and have not yet become embedded in the way other laws have and this may make them politically more easy to remove.
All of this is speculation at present. We will be keeping an eye out for any changes which actually do transpire, and will update you as and when.
This article is accurate as at 4 December 2020.