The EU and HREU

Ahead of the UK referendum on Europe on the 23rd June 2016, we thought we would dedicate this week’s newsletter to taking a topical (hopefully unbiased and politically neutral) look at some of the possible implications for UK employment law if the campaign to leave the European Union wins out the day on the 23rd June.

Red tape, so the argument goes, is a terrible, terrible thing.  We at RBHR are very happy to agree with that despite the fact that a large part of our time is dedicated to helping our clients plot their way through the often complicated and some might say impenetrable sea of legislation that we sometimes face.  Employment law is often portrayed as being red tape of the worst kind, and prominent leave campaigners will often paint a utopia (as opposed to a Eurotopia) where business owners are free to treat their employees in any way they see fit - free of the diktats of Brussels and its evil Eurocrats.  But is that really a utopia that we can all buy into, or might the leave camp simply be trying to create a pariah?

Let’s firstly take a look at some of the realities that might get in the way of a wholesale clear out of the current raft of “European” employment law:

  • Much of it was in place prior to 1st January 1973 - Unfair dismissal protection was the UK government’s own idea in 1971 and there was also race discrimination laws from 1965, the legislation (if not enacted and arguably without intent) for equal pay in 1970, and the right of return from maternity leave.

 

  • We actually quite like some of it - Discrimination law, family leave legislation and rights to paid holiday are pretty much all accepted by most UK workers as being a good thing.  We even go further with some rights than we need to – for example, EU law says that employers only need to offer 4 weeks’ paid holiday – we allow 5.6.

 

  • We just might have to be realistic - If we want to continue to trade with Europe, we will most likely have to shadow EU employment law anyway.  Switzerland and the countries in the European Economic Area (i.e. Norway, Iceland and Liechtenstein) have to, so why wouldn’t we?

 

  • Doing away with EU employment law is going to be really hard work - It’s not only the effects of legislation that can get complicated.  Laws themselves – mainly because they rely on and cross reference each other - can get tangled up too.  So ridding ourselves of Europe isn’t as easy as just repealing a few Acts of Parliament?  Not really.  For instance, many pieces of so called secondary legislation rely on the European Communities Act 1972 for their existence, so if that was repealed then far reaching and important laws such as the TUPE Regulations and the Working Time Regulations would disappear overnight – that would mean no employee protection in business transfers, but very likely more controversially, no right to paid holiday!

 

  • We have precedent don’t we? - It’s a pillar of UK law! Yes, and it means that the Courts would struggle to ignore decisions based on EU law entirely.  It is likely that they would have to treat them as persuasive (they’d use the logic) even if they don’t see them as binding.

 

Having tried to introduce a bit of perspective to the debate, how might specific areas of law be changed?

 

Agency Workers Regulations

These are difficult, unwieldy and not liked by many.  They are the most likely candidate for outright elimination if the UK votes to leave.

 

Holidays and Working Time

Removing rights to paid holiday is not likely to be electorally popular, so we can’t see those being taken off the statute book anytime soon.  Similarly, there are elements of the Working Time Regulations which make sense even if just from a health and safety point of view – so rest periods and protection for night time workers will most likely stay too.

The obvious targets for change are the fairly useless cap on weekly working time and the plethora of case law that has built up around holiday pay and accrual.  Holiday pay might be restricted to basic pay only for example (as opposed to it including commission and overtime), and employees on long term sick might be prohibited from carrying over holidays from one year to the next.

 

Discrimination Make unfettered discrimination lawful… really?

At a push, an unencumbered government might put a cap on discrimination compensation (currently unlimited).

 

Family friendly policies

These are a largely a mixed bag of UK and EU Law – for instance - although they might have subsequently been influenced and tweaked by Europe - maternity leave and pay, the right to shared parental leave and the right to request flexible working are all UK laws born and bred.

 

Transfer of Undertakings

Can be controversial because they are regarded as complex, but not only do they protect employees when there is a business transfer, what business owner wouldn’t want to keep skilled staff?  Again, TUPE might be ripe for rationalising, for example by lifting in its entirety the current prohibition on changing employees’ terms and conditions on transfer.

 

Collective consultation

Most often seen arising in redundancy situations, the existing Regulations have had their gold plating removed and they are now relatively unburdensome. In practical terms they don’t really make employers do any more than is sensible anyway, so we do not believe they would be worth disposing of quickly.

 

The latest BBC poll is close on both sides, so it is impossible to predict which way the great British public will vote.

However, what we do know is whatever happens on 23rd June, you can count on RBHR being on hand to help, advise and guide you through any employment matters your business might face. Simply call us on 01935 411191, or email admin@rebeccabevins.co.uk