In 12 April 2016, in our article "The Great Brexit Debate:
Protection for Workers" we shared our views on the potential
impact of Britain's exit from the European Union. Following the
referendum, we have a clear mandate for exit. However, there is
much doubt about what the future may look like for the UK and our
relationship with Europe. It is likely that there will now be a
prolonged transition period with the next government needing time
to plan, prepare and negotiate the UK's future.
Some key thoughts meanwhile:
The UK has a body of homegrown
legislation protecting UK employment law rights. The fundamental
right to claim unfair dismissal will not be affected by the
withdrawal from Europe. The UK also had discrimination laws in
place before its ascension to the EU.
EU aims and legislation are so
established in our views of UK good employment practice that they
are likely to remain fundamentally the same for now. Moving to a
US-style system where employees receive lower overall protection is
possible, but unlikely in the short term, given the broader
cultural change needed to accept the US norms.
Trade and investment are good for
employment growth and stability. The government will want to keep a
level playing field with the UK's European counterparts to
ensure that vital relationships are maintained at this crucial
time. One key area where it will want to display its good practice
is in data protection. Realistically a single market deal may also
mean the UK continuing to be subject to key EU legislation.
Subject to the above, eventually EU
rights, or improvements of those rights, may reduce or end. We
would not be surprised to see any reviews follow a similar format
to the 2014 review of gold-plating of TUPE. Many will recall that
in that case the government's grand proposals were ultimately
reduced to a few smaller, less significant changes. If the UK is
not required to keep EU legislation in these areas as part of a
broader deal, the government may review and make changes to the
current position in a number of areas, such as: 1) harmonisation of
terms following a TUPE transfer; 2) limits on bankers' bonuses;
3) working time controls; 4) collective redundancy consultation; 5)
agency workers' rights; and 6) the absence of a cap on
If the UK is not subject to the
jurisdiction of the European Court of Justice, we may see our case
law develop in a slightly different direction. This may mean a
gradual parting of ways.
Imposing limits in the free movement of labour could make the UK
a much less attractive destination for international businesses and
skilled and educated migrants.
On balance, it is most likely that a future government will want to
preserve the status quo at least in the short term. It is likely to
look for opportunities for more fundamental and valuable changes as
the dust settles.
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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