EU Referendum: “Remain” – the same? or “Brexit” – an employers’ bonanza?

With just over a week to go to a vote on what is probably the most significant political issue in a generation, my thoughts have turned in a self-centric way to considering how remaining in the EU or a Brexit might impact on businesses and employees.

In January 2013 in his Bloomberg speech, David Cameron announced he would seek a “new settlement” for Britain in Europe. This included a pledge to seek an opt-out for the UK in respect of all EU employment directives. He specifically stated “for example, it is neither right nor necessary to claim that the integrity of the single market, or full membership of the European Union requires the working hours of British hospital doctors to be set in Brussels irrespective of the views of British parliamentarians and practitioners”. In August 2015, Mr. Cameron decided not to demand a full exclusion for the UK from employment directives nor to seek an opt-out of the Working Time Directive nor in fact anything at all in respect of employment legislation.

It is true a significant quantity of our employment laws are derived from EU directives. However, some of the concepts most derided by employers were in place before we joined the EU.

Equal pay, race and disability discrimination laws all preceded EU anti-discrimination obligations. Similarly there was an existing UK right of return to work from maternity leave before the EU maternity leave rights were implemented. Whilst in practice on a Brexit it would be possible to repeal all discrimination laws, it is difficult to imagine how such a repeal could be justified. For employers to argue that they should be allowed to discriminate is unattractive, at best. To simplify the Transfer of Undertakings (TUPE) Regulations would be a welcome relief for us lawyers, enabling us to provide more predictable outcomes cost effectively but again the UK Government had the ability to do this within the EU constraints and yet implemented legislation on service provision changes in excess of Brussel’s requirements.

The right to paid statutory holiday is now well embedded and again it is difficult to imagine such rights being removed given that the UK paid statutory holiday entitlement of 28 days rights exceeds the EU’s requirement for 20 days’ paid leave under the Working Time Directive.

Theoretically on a Brexit the large number of other EU nationals working in this country would no longer have the automatic right to remain to work here. Would the UK Government require them to return to their country of origin? It is more likely that there would be an amnesty for those already working here in exchange for a similar agreement for UK nationals working in other EU countries.

So on a Brexit I do not anticipate that there would be much change to our mainstream employment laws.

But what if we remain? I think that we will see more regulations particularly for agency workers and financial services, which would be unwelcome. However, being “in” does allow for persuasion, argument and/or disruption but please in the words of Sir Humphrey call it “diplomacy”.

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Rachel Harrap
Partner | Head of Employment
For Edwin Coe LLP
t: +44 (0)20 7691 4084 | e: rachel.harrap@edwincoe.com

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