This article outlines the possible implications on employment
rights if and when the UK leaves the EU.
A number of key employment rights derive from EU legislation, in
particular those relating to equal opportunities, holiday and
working time. A departure from the EU could allow such legislation
to be weakened or even repealed. However, would the government take
such radical steps?
Protections already in place in UK law: Some EU laws merely
codify protections that already existed under UK law, for example,
equal pay and discrimination protections. It seems unlikely that
the government would simply remove these protections.
Employer expectations: An influx of changes to UK employment
law could result in confusion and uncertainty for employers, in
addition to the significant costs arising from complying with the
Worker expectations: UK workers have come to rely upon a number
of rights that derive from EU law, such as protection against
discrimination; family friendly rights; and regulations on working
hours. It would be an unpopular move to significantly weaken these
Not afraid to take unpopular decisions: In recent times, we
have seen the increase in the length of service requirements to
obtain unfair dismissal protections as well as the introduction of
Employment Tribunal fees, so anything is possible.
UK case law
If and when the UK leaves the EU, the UK courts would most
likely become the primary decision makers in respect of employment
law cases. It is unclear as to how legal precedents set by the
European courts would then be determined. In the short-term at
least, UK courts and tribunals would be likely to continue to
consider European judgments as persuasive, but longer term, UK case
law could come to contradict European case law.
Even if it were to leave the EU, the UK would still continue to
play a significant role in trade with the rest of Europe. To do so,
the UK will need to negotiate new trade agreements (see '
Possible post-Brexit models for engaging with the EU'). No
doubt these will impose minimum requirements on what UK employers
can and cannot do in order to maintain a relatively level playing
field with their European counterparts.
Immigration and free movement
One of the key battle grounds in the referendum was immigration.
Whilst there is a groundswell for greater controls over the
UK's borders, there is also an acknowledgement that immigration
is necessary to help the UK economy grow. At present, EU citizens
generally have the right to live and work in fellow Member States.
A withdrawal from Europe would likely see that right end and a new
agreement negotiated. It is unlikely that this would lead to a mass
exodus of non-UK workers but no doubt this area would be
While this may not impact on existing workers who are likely to
be protected under transitional provisions, it may change the
landscape of future recruitment with a greater focus on selecting
from the UK population and the use of skills tests. EU countries
would also be able to impose their own restrictions on UK citizens
working in Europe.
Serving notice under Article 50 of the Lisbon Treaty of the
UK's intention to leave the EU is likely to create a frantic
two year period during which trade agreements are re-negotiated and
new legislation implemented to cover the gaps left by no longer
being subject to EU law. Decisions will also need to be taken as to
whether judgments by the European Court of Justice would still bind
the UK courts.
In the short term, employment laws and rights are unlikely to be
dramatically impacted. However, with the shift away from EU laws,
medium to longer term change is inevitable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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