Siobhan Bishop and Jonathan Chamberlain, a partner in our Employment, Labour and Equalities team, discuss the Brexit results and what it might mean for employment law going forward.
Siobhan Bishop: Hello, I'm Siobhan Bishop and I am talking today with Jonathan Chamberlain, a partner in our Employment, Labour and Equalities team, about the Brexit results and what it might mean for employment law going forward.
So, Jonathan, what do you think are the likely implications of Brexit for employers as far as employment law goes?
Jonathan Chamberlain: I haven't a Scooby, Siobhan, and neither has anybody else, and if they say differently then they are not telling the truth and I rather think we've all had enough of that over the last few weeks.
It's clear now that there isn't a plan. There is a range of options, possibilities might be a better way of putting it, for our relationship with the EU, and at one end of those might be that we remain in the single market.
If we do, it is likely that we will have to keep all the rules of the single market. That will include employment rules and so nothing may change. At the other end of the possible range of options is that we might come out of the single market. We might find ourselves trading with the EU on the basis of World Trade Organisation rules and, in those circumstances, all English employment law which is derived from EU law might be up for grabs.
Now, in theory that includes things like the discrimination legislation. I think it's pretty unlikely that that will go. But things like TUPE, for example, or collective redundancy consultation, who knows whether or not they will survive. And the mere fact, take TUPE as a very good example, that business and employees understand it, accept it, it's part of the landscape of outsourcing. We use the verb 'to TUPE', I have been 'TUPE'd' six times in my career. When this Government looked at repealing service provision change, which of course was the UK's gold plating of EU rules, something that the UK didn't have to do, even before the Brexit route, business and employees said we want this to remain and so it remained.
Perhaps an unfortunate choice of word nowadays, but it did remain. Whether in this new ideologically-driven atmosphere it will still survive, who knows?
Siobhan: So, you've mentioned discrimination already and that's one area where some of the law predates EU regulation and some of it doesn't. What do you think might happen in that area?
Jonathan: What I think will happen, gazing into Jonathan's Chamberlain's crystal ball, I think it's likely to stay, save perhaps in a couple of respects, I'll come back to those in a moment if I may.
But what I think is very likely is that we will see a cap introduced on compensation. At the moment, compensation for any of the discrimination cases, sex, age, race, sexual orientation, disability, religion or belief is all uncapped.
Now, what I think quite likely is that the Government will introduce a maximum limit. My guess, and it really is a guess, perhaps one year's money, something like that. Now, they're prohibited from doing that under EU law because the principle of EU law is that every right must have an effective remedy. The only thing which mitigates against that in the UK possibly is if you have an agenda on diversity in the board room, then to impose a cap does seem to run counter to that, because it will be particularly high earning, high flying senior women, frankly, who have most to lose from this and an agenda of putting those women into the boardrooms, which would have most to lose from this, but I do think that is quite likely.
Now, if any of the legislation in principle is vulnerable, then I suspect it might be the religion and belief regulations. I had the sense that, for example, Evangelical Christians voted strongly to leave. I might be completely wrong about that, that's my own anecdotal experience, and I think, again my guess, is that that comes from the series of cases that we've seen before the Courts that Christian B&B owners have to allow gay couples to stay. That a Christian registrar has to conduct civil partnerships and gay weddings. That a Northern Ireland baker has to bake a cake which they don't want to do. And so Christians have objected very strongly to this and it might be seen as a quick win for an administration to repeal those regulations or in some way alter them to allow that kind of discrimination, and it is discrimination as the law currently stands, to take place.
An interesting aspect of that, of course, would be in relation to political belief because I think there is little doubt at the moment that the turmoil in the markets that has been caused by/is a direct result of the decision to leave, is ultimately going to impact on people's jobs.
And then if it comes to selecting people for redundancy and you have employees who campaigned strongly for exit against their colleagues who didn't, then at the moment, ironically, those employees who campaigned are protected against being selected for redundancy on the basis of this is the situation that they voted for, this is the situation they helped to create, by the political belief regulations.
But if those are repealed then query would it be legitimate for business to say you broke this, now you own it. We shall see.
Siobhan: Which areas do you think are less vulnerable, less likely to change going forward?
Jonathan: I think that what you might call the basic equalities legislation is going to stay in place. I think the family-friendly legislation is going to stay in place. After all, it's this Government, for example, who's pushing for grandparental leave, which goes way further than any EU obligation to which we might be signed up.
I think the interesting one will be the collective consultation on redundancies. Now those rules are wholly alien to the British tradition of industrial relations, but they have become part of the landscape over the last 20 years or so and query whether a Government which is free to repeal them will choose to do so or whether they will leave them in place. I think that's the one that is really hard to call.
Siobhan: Finally, and you've touched on this already, employees are going to have concerns about their own positions. So, for example their status as migrant workers or their future prospects. What advice are you going to give to employers to deal with this uncertainty?
Jonathan: Well this is already happening. I know of one employer where Polish workers formed a delegation and came to the Chairman to ask what was going to happen to them. So, there is a lot of concern amongst the EU nationals or the EU nationals working in the UK, as well as concern in the workforce of the UK limited, UK plc as to what's going to happen to them.
So, I think in practical terms, what we have to do is this: the first step is reassurance. Nothing is going to change in the short term, okay? No non-UK EU nationals are going to lose their jobs immediately as a result of this. They need to be told that they are safe.
And the second part of that is we still need to promote safe places for people to work in and there are some horrifying stories and statistics out there about the increase in racial and religious abuse and attacks that are going on. The discrimination laws remain in full force and effect and the tribunals will expect employers to police them ruthlessly, vigorously, perhaps even more so, at this very difficult time.
I think there is also, though, another fault line which is running through most workplaces and it is, I think particularly interesting when you look at the Ashcroft polls as to who voted in and who voted out.
And whilst it is not true to say that everyone who is in a job voted to stay in, it is true to say that most people who are in jobs voted to stay in and it follows that, in most workplaces, most of the people will be on, as it were, 'the losing side' in this debate, and we already know that there is a lot of shock, there's a lot of anger about this and this is fracturing families, so goodness knows what it's doing in workplaces and I think employers need to be getting out there and promoting team work and cohesion. Not merely along the lines prescribed by the discrimination legislation, but to recognise that they have got a wounded, fractured workforce with wounded, fractured people in it and they are going to need to work hard to bring them together.
The final point for employers is it is okay to say that you don't know what's going to happen. After all, if you've watched this webcast then you will have seen that very few people know what is going to happen. But what you do need to be able to do is to show, unlike, if I may say so, some of our politicians, you have prepared for every eventuality. That you are ready to take the business forward, peoples' jobs forward, peoples' careers forward.
Siobhan: Thank you very much Jonathan.
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