Unions must scrutinise employment law changes, says Marianne McJannett
Many Scots are still in a state of shock after the seismic vote by the UK to leave the European Union.
The implications of this referendum will be far-reaching and the full repercussions unknown for many years to come. But a primary question for many who work and travel abroad is: what does this mean for employment law?
Firstly, there is no reason to panic. The UK will continue to remain a member of the EU until there is an agreement on when we will leave. However, a number of employment issues are likely to be affected when we do leave.
Depending on the UK-EU deal ultimately agreed, the UK might remain bound by some European employment laws as the EU would not enter into trade agreements if we were able to undercut them as a result of less onerous employment terms.
Much UK employment law exists regardless of EU membership. However some more controversial requirements (from an employer’s perspective) may change. For example, the obligation to collectively consult where 20 or more redundancies are proposed stems from an EU Directive. This is an unpopular requirement for employers and it might be that this will be watered down, so the obligation to collectively consult perhaps only applies where there are 100 or more redundancies proposed.
This will cause concern among trade unions who will see Brexit as bad for employment rights, however a future UK government will have the ability to vote on this without interference.
Most of the Working Time Regulations and employment protection rules may stay, though there may be some relaxation on allowing post-transfer harmonisation of terms and conditions. We might see the removal of the Agency Worker Regulations which requires employers to offer equal terms and benefits to agency workers once they have been working for 12 weeks.
The UK’s Discrimination Legislation contained in the Equality Act 2010 is unlikely to be repealed as we had already legislated to prohibit sex discrimination, race discrimination and disability discrimination before Europe required us to do so. However, there has been some discussion that discrimination compensation at Employment Tribunals might be capped in line with that for unfair dismissal compensation. This currently can’t be done because membership of the EU wouldn’t allow it.
Finally, there is unlikely to be any reduction to family friendly rights as the UK exceeds EU rights considerably in relation to maternity and shared parental leave.
One of the biggest bones of contention, especially among younger people, is the ability to live and work in Europe – and for Europeans to live and work in Scotland. It is difficult to comment on this in depth as this will be the result of negotiations with the EU once Article 50 has been invoked. An equitable solution would be to allow all EU citizens now paying tax here to be given the right of dual-nationality.
One key issue is the way in which the post-referendum discussion has been playing out on social media and on the streets. Employees should be mindful that any comments to fellow employees about “going back to where they came from” will potentially lead to disciplinary action in the usual way. Any Brexit should never lead to racist comments or bullying.
• Marianne McJannett is an employment lawyer with TC Young, part of the United Employment Lawyers network