Darren Maw: The impact of Brexit on employment issues,the vista debate

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L to R is Cllr Syd Lloyd (Leader of Stockport Conservatives), Darren Maw (MD of Vista) & Rt Hon Dominic Grieve QC MP (former Attorney General).

If on 23rd June Britain votes for Brexit, we will cease to share both the benefits and burdens of EU legislation in the workplace. In front of an audience of senior HR professionals from some of the UK’s biggest employers, the cases for and against were debated at Vista’s “Ten Amendments” regular employment update event at Manchester Town Hall, featuring former Attorney General Dominic Grieve QC MP (Remain) and Cllr Syd Lloyd (Leave).

Here is a summary of some of the points discussed on the day:

All predictions about what would happen to employment law in the case of Brexit are educated guesswork at this point. However, we can look at the areas of social rights that are covered by EU regulations, to anticipate what has the potential to be changed for the better, or come under attack.

EU law has had a profound effect on workers’ rights. This is particularly apparent in the EU framework directive on discrimination, which extended UK law to introduce ‘protected characteristics’ to eradicate workplace discrimination on the grounds of disability, gender, age, pregnancy and maternity, race, religion or belief, sex, or sexual orientation. Some UK laws on discrimination were in place before the EU issued these.

It is true that the EU does affect employment law, although many of these laws are part of UK legislation.  If there is a Brexit any changes to legislation will be subject to heavy negotiation through UK Parliament and this will certainly not happen overnight.  The wish list of the Leave campaign is not the Government’s manifesto.  If Brexit was to occur the current and future Government’s is likely to come under pressure from employers and campaign groups to change and repeal employment legislation.

The Leave campaign have argued that some UK laws are more generous than those set out by the EU, quoting entitlement to more paid holidays as a key example.

Should the Leave campaign get their way it is believed that their top targets will be the Working Time Directive and Agency Worker legislation.  It is possible that the pressure will be put on the Government to look at the working time directive, which places a restriction of a maximum 48 hour week to allow greater discretion to employers.

The Agency Workers Directive requires employers of agency workers to keep basic employment rights and record keeping similar to those of permanent employees. According to the Leave camp, employers see this as a key example of EU red-tape and needless record keeping, and it is likely to be the first area to be rolled back.

The proportion of UK law that is influenced by the EU is widely debated, with estimates varying from 10% to 70%. Although there is no accurate way to calculate this, we can look at individual sectors: agriculture, fisheries, external trade and environment are all heavily influenced by the EU.

Currently, EU workers rights are the subject of very strong legal guarantees. The UK Government, State bodies and the courts are required to give effect to EU-derived employment rights, to ensure effective remedies. The strength of these rights effectively prevents the UK Government acting to override them, if they wished to do so.  A Brexit, on the other hand, could give any future UK Government legal freedom of action to change working life, provided that the majority of parliament were in agreement and willing to vote for the alterations, something easier said than done.

The Remain campaign could argue that as the UK, for the most part, is now accustomed to these workers rights as normal part of working life, it would be a political disaster to strip workers of their protection. Other duties, set out in international obligations, have a much weaker hold if a Government is committed to deregulation of rights in the workplace. It is possible that certain rights could come under attack, especially those that employers find to be the biggest burden.

At the Ten Amendments event, one of the topics that sparked a big debate was whether or not employers should be attempting to influence their employees on which way to vote in the referendum. We have seen more and more companies such as Siemens and JCB come out on either side of the debate. The two panellists firmly disagreed with each other;

Cllr Syd Lloyd (Leave) believes that it is “totally wrong” for employers to tell staff who to vote for, explaining that he had never tried to influence his employees’ views politically. His view is that all debate should instead be held out in the open, and the public should be given enough information and vote with their own feelings.

Dominic Grieve QC MP (Remain), however, argued that employers, as much as any other member of the public, should be entitled to express their opinion if they think it is right to say so. He believes this referendum is an appraisal of risk, controlling risk and potential reward stating it is right to warn that a vote to leave “will deliver considerable disruption”.

Certainly, if a company’s future depends on the outcome, an employer might feel the need to share that opinion with their workforce – but it is hotly contended whether this is just the view of one or a handful of individuals at the top of an organisation.

There is no reason that, without the EU legislation in place, the UK could not develop its own protective rights for employees. The present rights are simply a starting place, and don’t prevent any EU member states from enacting domestic legislation to give a higher level of protection to its workers. These rules surrounding employment are a floor, not a ceiling. It is impossible to guess whether future governments, who may be more disposed to workers rights, could actively work towards creating more favourable rights for employees.  The UK already entertains employment rights beyond those required by EU legislation and any government present and future would have the ability to retain or protect these rights or extend them further subject further, subject to the will of Parliament.

In the event of a Brexit, it isn’t as simple as the laws suddenly being removed – any changes would have to be negotiated. The question to ultimately ask is: “Would the UK parliament be best placed to calibrate legislation, or should we look to the EU for guidance as we do now”?  Employment law can be seen as economic policy so Government could look to balance employment law with the needs of employers and wider economy.

 

 

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About Darren Maw

Darren Maw is a barrister and managing director of employment law and HR firm Vista

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