November 26, 2020
As the Covid 19 pandemic has resulted in the issue of Brexit taking a backseat, this article explores how the end of the Brexit transition period on 31st December 2020 may impact on UK employment law.
After 31st December 2020, any existing EU law will become incorporated into UK legislation. Once this takes place, we may see some changes to UK employment law. We have addressed some of the potential changes in this article.
Any changes are unlikely to be an immediate priority, however, it is important to bear these changes in mind.
A substantial amount of UK employment legislation comes from domestic law. In particular, several rights relating to unfair dismissal, redundancy and wage disputes are set out in the Employment Rights Act 1996. On a similar level, the Equality Act 2010 forms the main authority for discrimination legislation in England and Wales. Given the domestic basis of this legislation, it would be reasonable to assume that Brexit will have little impact on its current standing.
There are many areas of UK employment legislation that afford employees a greater degree of rights than is set out in the corresponding EU legislation. For instance, employees’ holiday entitlement and maternity pay and leave arrangements are more generous than the minimum requirement that is set out by the European courts. As the legislation goes over and above the minimum requirements, it would make little sense for the UK government to look to appeal or abolish any of its legislation in this area.
We are most likely to see any change focus around those aspects of UK employment law that are imposed by EU law and may be unpopular with lawmakers. For this reason, you may see some changes in the following areas:-
- The Working Time Regulations 1998 (WTR) – the current regulations set out a cap on 48 hours working week. This has proved to be unpopular with UK employers, even with an opt-out mechanism. This could be abolished following the end of the transition period.
European case law also sets out that working time under the WTR should include travel time to and from work. It may be that the UK government passes legislation to deal with this point specifically. This could result in travel time to and from the employee’s main place of work being specifically excluded under the WTR.
- Holiday Pay – linked to the above point, the European courts have over the past number of years passed judgements on issues relating to holiday pay. Specifically, this has related to issues such as whether holiday pay can accrue and carry over during periods of sickness absence. At the time of writing it is not clear how these decisions will be approached by the UK courts after 31st December 2020. It could be open for the government to pass legislation dealing with these points or allow for UK courts to depart from any decisions taken by the European courts.
- The Agency Workers Regulations 2010 (AWR) – the basis of the AWR is to afford agency workers similar rights to employees after 12 weeks’ continuous service. This has been unpopular with employers as it prevents them from exercising flexibility when recruiting agency workers.
- TUPE – current employment law makes it difficult for employers to harmonise terms in a TUPE scenario. This could result in changes being made to make it more flexible for employers to amend employees’ terms and conditions following a TUPE transfer.
If you would like to discuss any of the above points, then feel free to contact one of our employment lawyers on 0161 826 0341 or email@example.com.