There has been much speculation regarding which employment laws will be scrapped when Brexit finally takes place. The truth is that it is much too early to give any clear guidance on this.
However, it seems to us that many UK employment protections – such as legislation that prevents discrimination, rules regarding maternity and paternity leave and protection provided to workers who raise legitimate whistleblowing concerns – are established in the UK and that there would be little public support for removing them.
Further, employee rights have already been significantly diminished in recent years with changes made to unfair dismissal protection (increasing the qualifying service from one year to two and limiting the compensation that is available if successful to one year’s salary) and the introduction of fees in order to pursue a claim in the employment tribunal.
Areas that might be vulnerable are those that are less popular or less well known to the public. For example, the Transfer of Undertakings (Protection of Employment) Regulations 2006 – commonly known as “TUPE” – protect employees in cases where ownership of their employer changes hands. Consequently, the regulations are often accused of placing an unreasonable burden on acquirers as they prevent them from engaging the individuals on their own chosen terms. This can lead to a “two tier workforce” with employees performing the same roles being engaged on two different sets of terms and conditions.
The Agency Worker Regulations 2010, which give additional rights to agency workers once they have been engaged by a hirer for a period of 12 weeks, are another example of protection which is less popular among businesses and perhaps less well known among workers.
If any significant changes are seen in employment laws as a result of leaving the EU, we expect these to be likely areas for such change. For employers in the hotel and leisure industries, where use of agency workers and service provision change TUPE transfers are common, this will create unwelcome uncertainty.
Any contracts that are being prepared and signed now and that are expected to last for a period of two years or more might be affected by future change to TUPE or the Agency Workers Regulations. Thought should therefore be given to how your business can address the uncertainty created by an repeal to these current protections.