You'd be forgiven for hoping that you'd open this
month's newsletter and see no mention of Brexit. But this is
something that's not going away, and given how important it
will be to the future of the UK, it would be remiss of us not to
mention it in our first newsletter since the big decision was
When it comes to employment law, the question on everyone's
lips is: will it really matter?
As was often repeated by the Remain campaign in the build-up to
the referendum, much of UK employment law does indeed derive from
the European Union (EU). The list includes: protection against
discrimination; family friendly rights; protection of employment on
the transfer of an undertaking (TUPE); collective consultation
obligations; rights for agency workers; limits on working time and
the right to paid holiday. On first glance, the implications of
Brexit on UK employment law do look a little scary.
However, the fact is that in most of these areas (except for
working time, collective consultation and rights for agency
workers), UK employment protections either pre-dated or have
'gold-plated' EU law. For example, there was also
protection in the UK against discrimination on the grounds of race,
sex and disability before the EU Equal Treatment Directive. Women
in the UK returning from maternity leave were entitled to come back
to the same job before EU legislation weighed in. In the UK,
mothers are entitled to take up to 52 weeks' maternity leave
(if they take both ordinary and additional leave) – the EU
minimum requirement is for just 14 weeks. The EU Working Time
Directive requires member states to pass legislation entitling
workers to a minimum of 20 days' paid annual leave – in
the UK, we have at least 28 days. A further example is found in
TUPE – the concept of a service provision change (which
relates to outsourcing arrangements) isn't found anywhere in
the EU Acquired Rights Directive – it's a UK
If we look again at those family friendly rights, the concept of
shared parental leave is a UK legislative creation. The government
has announced plans to extend the right to this kind of leave to
grandparents. Whatever the uptake of shared parental leave (which
is believed to be low) and, should it be implemented, shared
grandparental leave (which will surely be lower), it is clear that
the UK is trying to offer rights to support working families, not
take rights away from them. Leaving the EU is unlikely to change
Where we are most likely to see changes is in how the Courts
interpret employment legislation. Depending on the terms of the
exit from the EU the UK is able to negotiate, the decisions of the
European Court of Justice (ECJ) may no longer be binding on the UK.
This means that in future it would, for example, be open to the UK
Courts to determine whether holiday pay is limited to basic pay or
should include commission payments and (for employees with normal
working hours) overtime. We could, therefore, see the nuances of UK
employment law develop in quite a different way from the ECJ case
There is of course a risk that a future government might want to
substantially dilute UK employment rights, and Brexit will make
this more of a possibility. However, as the result of the
referendum has shown, we live in a democracy (for better or for
worse). With that in mind, no government would dilute employment
rights substantially (if at all) if they wanted to stay in
So, when it comes to employment law, will Brexit matter?
Probably not that much. Although the true answer remains that, for
now (and probably for quite some time to come), we just don't
For a more in-depth analysis of the likely implications of
Brexit (from an employment and immigration point of view) please
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L’evento, organizzato in collaborazione con AIGI, Associazione Italiana Giuristi d’Impresa, approfondirà le novità del Decreto Legislativo n. 3/2017, entrato in vigore lo scorso 3 febbraio, che recepisce la Direttiva 2014/104/UE sul private enforcement.
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