We’re in a post-BREXIT employment law New World Order…
For some time now, the Government has been operating what’s known as the “one in, two out” regime when introducing new regulations. People often think this means that for every new regulation to become law, two regulations must be abolished.
It’s not as simple as that.
In practice it means that, where there’s a need for a new regulation, and where there’s a cost to business of complying with that new regulation, the Government has to remove or modify existing regulation(s) to the value of £2 of savings for every £1 of cost imposed.
The regime came about as a result of businesses complaining about the time and cost of complying with the complexity and number of new regulations. But, whilst the regime could mean the introduction of more (less costly) regulations, it’s resulted in fewer regulations overall.
So imagine the joy that businesses and Government might experience when EU-derived legislation and associated regulations melt away post-BREXIT!
This is the thing: much of the UK’s legislation, though deriving from EU directives, works well and matches current social trends and is likely to remain in place and/or influence our home-grown laws for some time to come. So getting rid of this “good stuff” would be a retrograde step from the perspective of having a better society. There’s also a certain amount of EU legislation that was already law in the UK before it became subsumed into EU law at a later date. So we would probably want to retain that anyway.
In reality the range of EU-derived employment legislation is broad and includes agency regulations, collective consultation, discrimination, diversity and equality rights, family leave, TUPE and working time (including minimum holiday entitlements – the UK’s entitlement is actually more generous than required by EU law). And although many aspects of these laws are unpopular, some of them have brought certainty (the service provision changes under TUPE) and a better deal socially (note that shared parental leave is a local, not an EU provision).
But what if, post-BREXIT, the Government imposed (even more of) a shock on business of having to deal with a sudden, fundamental change in the law by repealing everything EU-related…? It would be too much. Also we all (probably) recognise that, in order to access a free(ish) market, there will be a need to preserve certain minimum employment protection regimes.
So instead, the Government will take a drip-feed approach. For that reason, the quantity of employment law likely to vanish is small; but our labour laws may approach Canada, Australia and New Zealand – independent trading nations we will now have to model ourselves on.
What are the candidates for being kicked out or changed? Here are some that might be considered:
- the right to accrue holiday when off sick? Kick out entirely.
- the whole of the agency worker regulations? Kick out entirely.
- the ban on capping bonuses in the financial sector? Kick out or modify.
- no cap on discrimination compensation? Kick out and mirror the unfair dismissal cap.
- no cap on whistle blowing compensation? Kick out and mirror the unfair dismissal cap.
- the right to carry over unused holiday entitlement for 18 months? Kick out or modify.
- ban harmonising terms and conditions after a TUPE transfer? Modify to allow this.
Whatever happens, it won’t be immediate. The two-year post-Article 50 negotiation period is probably only the beginning of the period before laws and regulations start to be changed – and even then the new BREXIT regime is likely to look pretty similar to the current regime.
So keep calm and carry on…
…but remember as well the effect on employment rights of not having free movement of people to do your work – have a look at my earlier BREXIT blog on this here.