5 practical implications of Brexit on key employment legislation in the UK

5 practical implications of Brexit on key employment legislation in the UK

On 31 December 2020, the UK Government entered into the UK-EU Trade and Cooperation Agreement (Trade Agreement). The Trade Agreement contains commitments by the UK Government to maintain employment rights at the same level as on 30 December 2020, but only if they affect trade or investment. This means that the UK Government is free to diverge from current employment legislation outside of this and it is likely that they will do so in some problematic areas. Selena Baker, associate Director in the employment and HR department considers below five practical implications of Brexit on key UK employment legislation.

What impact will Brexit have on key employment legislation in the UK?

As stated in the EU Withdrawal Act 2018 (as amended this year), UK legislation which was implemented prior to 31 December 2020 to give effect to EU employment law shall remain in force. This said, multiple areas of employment law may be impacted, these include:

1) Equality and Human Rights. The UK and EU are able to suspend Part 3 of the Trade Agreement in respect of human rights if there are "serious and systematic deficiencies" in relation to fundamental human rights by the other party. Based on this wording, the UK appears to have the right to replace the Human Rights Act 1998 (which gives effect to ECHR rights) provided it still upholds the ECHR rights and does not weaken them.

2) Family-related leave and pay. Parental rights and family-related leave in the UK derive from both domestic and EU legislation, with some UK rights being more generous than the EU rights (such as maternity leave and pay). Additionally, newer UK rights such as shared parental leave and the right to request flexible working derive completely from UK law so will be unaffected by Brexit. As a result, it seems unlikely that the UK Government will have any intention of repealing or weakening these rights despite UK businesses often declaring them too burdensome.

3) Holidays and working time. It is very unlikely that the UK Government will want to remove the right to statutory paid holiday as it would cause much discontent from workers and trade unions. Additionally, as the UK Government has agreed to non-regression from employment protection that affects trade or investment, it is very unlikely they will remove the cap on the maximum weekly hours under the Working Time Regulations 1998, as this is likely to give UK employers a competitive advantage. This said, there are some areas that UK employers have found problematic such as employees accruing holidays whilst on sick leave and holiday pay including all forms of remuneration (not just basic salary) which may be deviated from by the UK Government in the near future.

4) Collective redundancy consultation. Collective redundancy consultation was previously required where an employer was proposing to dismiss 100 or more employees, but this was reduced to 45 employees in 2013. It seems entirely possible that the UK Government will look to water down this right or remove it completely as it has been apparent that employees have not felt strongly about maintaining this right. This said, trade unions are likely to fight against any plans to amend or remove it, which may influence the Government's decision.

5) Data protection. At the end of the transition period on 31 December 2020, the GDPR and parts of the Data Protection Act 2018 became part of the new retained EU law. The data protection legislation in the UK now comprises the UK GDPR and the DPA 2018 and the GDPR is now known as the EU GDPR in the UK.

As the above suggests, this is an evolving area of law and it will be interesting to witness the changes over the coming months as the UK's exit from the EU will affect UK employment law, especially in areas which have proven problematic for UK employers. This said, it is unclear as to what extent the UK will diverge from EU law as the Employment Tribunal and Employment Appeals Tribunal are still required to follow pre-2021 ECJ decisions and the UK is still required to uphold fundamental human rights.

The information contained in this article is for information purposes only and is not intended to constitute legal advice. Should you require employment law advice, our experienced advisors will be able to provide practical advice to support your business through the process. For advice, contact our employment & HR team at employment@greenawayscott.com or call us on 029 2009 5500.