Donald MacKinnon, director of legal services at Law At Work, reflects on what effect Brexit could have on employment law and health & safety.

As the political and financial unrest continues following the UK’s vote to leave the European Union we know that for many businesses the consequences of the vote are still sinking in. Lengthy negotiations between the UK Government and the remaining 27 member states will now begin in an attempt to secure a trade relationship between the two. What shape these negotiations will take remains the great unknown. It is widely anticipated that, in order to trade with the EU (on semi-favourable terms), the UK will have to continue to embrace some of Europe’s employment and health and safety laws. So, will ‘Brexit’ bring about the dawn of a new era of UK employment law or will the EU continue to have a hold over the UK’s domestic arrangements post-Brexit and, indeed, would UK workers want it any other way? 

Before the vote, the EU’s influence on employment law in the UK was raised as both a reason for and against Brexit. On the one hand, the leave campaigners argued that ‘Brexit’ would allow the UK to detach itself from cumbersome EU red tape that hampered economic growth and development. On the other hand, the remain campaigners argued that the employment rights emanating from EU Directives had made for fairer and better working conditions for UK workers as a whole. 

Whatever your persuasion, the extent of European influence on UK employment law cannot be understated. UK equality law, brought in by The Equality Act, comes from the European Equal Treatment Directive. Limits on working time and the right-to-be-paid annual leave comes from the European Working Time Directive, while the protection offered to employees on the transfer of a business (TUPE) are based solely on European law.

The decision to leave the EU has no immediate impact on these laws because the UK has implemented all EU Directives into UK Regulations (these Regulations can only be repealed by the UK Government). That said, in theory, ‘Brexit’ will free the UK Government to roll back a raft of employment rights and health & safety regulations. Yet, there is every reason to believe that the impact of an exit from the EU may have less of an impact than some fear and others hope.

Negotiations between the UK Government and the remaining member states will undoubtedly take some time, possibly for up two years. It is, therefore, unlikely that any radical changes will be implemented in the short term. Looking to the longer term, it seems generally accepted that the UK will wish to retain some form of relationship with the EU. This relationship will perhaps be along the lines of that enjoyed by Norway or Switzerland; however, that would involve the UK having to accept some EU legislation, including employment legislation.

Even if the UK were to sever all ties with Europe, there are practical difficulties with a ‘slash and burn’ approach to employment and health & safety regulations. People may complain about interference from Brussels, but how many in practice would be happy to lose their right to paid annual leave or accept a situation where employers could freely chose to discriminate against job applicants based on race, gender, age or sexual orientation?

Again, people may bemoan a ‘where there is blame, there is a claim’ health & safety culture’, but few would like to attend a workplace where safety rules were not implemented and enforced.

Far more likely than a wholesale change to the employment landscape, is a tinkering around the edges of current employment and health & safety regulation. One or two of the more unpopular, or less obviously necessary, regulations may disappear; for instance the Agency Workers Regulations could be in the firing line. The right to paid leave under the Working Time Regulations would in all probability remain in place, but some of the other restrictions on working hours could go.

It is difficult to see a Government, of any hue, make any significant changes to discrimination legislation or ‘family friendly’ rights. The right to claim unfair dismissal is one of the few pieces of employment legislation that derives wholly from UK domestic law and is unlikely to be affected.

The debate over Europe has excited much passion on all sides, but maybe the truth is that despite the rhetoric, certainly in employment and health & safety terms, not a lot may end up changing.