How might Brexit affect employment rights?

Although we have begun to see some indications of how some of our long-established employment laws could start to change after Brexit, this will hinge on any deal which the UK makes with the EU.

Practically speaking, the first thing that will happen on exit day is that all EU law which currently binds the UK will be automatically converted into UK law, under the EU (Withdrawal) Bill which is currently passing through Parliament.

After that, it is intended that Parliament will then be able to start chopping and changing those laws as it sees fit. (How exactly this will work in practice is another question, given the controversy surrounding the current version of the Withdrawal Bill.)

As for how far the Government (and subsequent Governments) in the UK will be able to go to change (or take away) workers’ rights which exist throughout the EU, this is likely to turn on whether or not the UK is able to reach a “deal” with the EU by exit day.

If we strike a deal, the EU wants this to include a commitment from the UK to carry on adhering to the same values and employment models we have been following since we joined the EU. At the very least, this looks likely to be the case during any post-Brexit “transition period”, which will probably also see the UK continuing to be bound by European Court of Justice (ECJ) decisions – so we may not see many changes to existing laws in the first two years.

However, if we do not strike a deal, then the UK will be much freer to amend its employment laws as it likes after exit day. Current indications from the Prime Minister and some senior ministers are that there are no plans to take away existing EU-derived employment rights. For example, Brexit Secretary David Davis said in a speech in February that he wanted the UK to lead a “race to the top” after Brexit in terms of the regulation of workplace, rather than a race to the bottom. However, other ministers – including Michael Gove and Boris Johnson – have hinted that they would like to see some regulations loosened or removed.

Regardless of current intentions, it will be difficult for later governments to keep some of our less-liked employment laws as they are now when faced with pressure from businesses and no longer subject to the EU directives or the scrutiny of the ECJ.

If this is the case, the first to go under the knife may well be the Working Time Regulations (which Michael Gove said in December he would like to see scrapped) and the Agency Workers’ Regulations, both of which are unpopular with many businesses. These laws could be amended instead of scrapped, but in employment law even small changes can make a huge difference to employment practices and relations.

The next few months will give us a better indication of what to expect, but in one way or another, we are likely to see our employment law landscape significantly change in coming years.

If you would like more information on this or a related topic, please contact the Employment and HR team.