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What the Future Holds for Employment Law Following #Brexit

As the nation still reels from the result of the EU Referendum, regardless of how you voted, it’s safe to say the UK now enters a period of uncertainty over Brexit.  Whilst the news reports that negotiations for Brexit will commence shortly, it is predicted that it will take at least two years for the UK to officially leave the EU.  It is therefore likely to be some time before the ramifications of the decision made by the majority of voters is known.

Prior to the referendum, we published an article on what Brexit could mean for employment law. Being part of the EU means that the UK currently has to create legislation which is compatible with EU law.  With that set to change, this gives the Government the opportunity to review currently legislation and decide what, if any, changes should be made.

Now Brexit has been confirmed, here are my top employment law predictions for what changes we could see over the forthcoming years.

Agency workers

The Agency Workers Regulations (AWR) were massively unpopular when they were introduced back in 2010.  They gave all agency workers the right to the same terms and conditions of employment as permanent employees once they had been engaged by a business for 12 weeks.  This naturally reduced companies use of agency workers and resulted in some companies ensuring they didn’t employ workers for more than the 12 weeks.  Some also believe this led to a rise in the use of zero hour contracts.

I think it is likely the AWR will be repealed and the position will revert back how things were pre-2010.  This is likely to increase the use of agency workers once again and may actually see a reduction in the use of the widely criticised zero hours contracts we currently see a trend for.

Consultations

Both the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) and the Trade Union and Labour Relations (Consolidation) Act (TULRCA) impose minimum consultation periods of employers looking to transfer staff to another business or entity, or make 20 or more employees redundant. TUPE also prevents employers making post-transfer variations to terms and conditions of employment. 

I think both pieces of legislation are likely to stay largely intact but I envisage a reduction of the minimum length of consultation periods, if not a complete removal which is replaced with a requirement for “reasonable” consultation.  This would fall in line with other legislation we currently see in the UK at present.

Holidays

The Working Time Regulations (WTR) will not be going anywhere.  What we may however see is changes to legislation based on recent European case law developments.

The most significant in recent years have been the accrual of holiday during long term absence and what constitutes ‘normal pay’ for the purpose of calculating holiday pay.

The former has been in a constant state of flux for some time, with the legal position changing more than once over the last decade.  Now, I expect the accrual of holiday during sickness absence to be on the agenda but remain unsure about whether the present position allowing accrual will be repealed.  Those who take family related leave have the right to accrue holiday, as to deny that right would be potentially discriminatory.  If the Government took away accrual during sickness absence, discrimination on the grounds of disability is certainly arguable.  Changing that piece of legislation could be as closely argued as the EU Referendum itself.

What constitutes a normal week’s pay is however more likely to change.  Adding other elements of pay, rather than just basic pay (bonuses, commission, overtime, etc), has been a hot topic in the European courts.  This has yet to completely filter down to national law although, pre-Brexit, it was likely the UK would follow suit and some employers were left recalculating the increased costs.  Now though, the UK may opt not to implement compatible laws and employees pursuing holiday pay claims may find courts stay the claim pending a formal decision from the Government.

Those are, of course, just a few predictions and no one really knows what the future will bring. 

As a niche employment law firm, we keep ourselves up to date on employment law news as it breaks to ensure we are in a position to advise businesses on legislative changes as they arise.  If you require advice or have any queries, please contact me on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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