March 29, 2017 By FTI Consulting
As Article 50 is triggered so the UK’s departure from the European Union gets underway. What impact will this process have on employment law in the UK and what will HR professionals need to do and be aware of during the next few years?
The triggering of Article 50 starts the clock running for the UK to negotiate and determine the deal upon which it will depart from EU membership in two years’ time. In terms of the effect on employment law in the UK at this time, there will be no change.
Throughout the two years the UK will remain a member of the EU and so all existing laws and decisions of the Court of Justice of the European Union will remain in effect and binding upon UK employers. During this time, the UK will also be bound by any new EU laws that come into effect, for example, the General Data Protection Regulation that will come into force in May 2018. The Regulation will be directly effective on all Member States at that time, of which we will still be one. Throughout the two years, individuals from the European Economic Area (the other 27 states plus Norway, Liechtenstein and Iceland) and Switzerland will continue to have the right to live and work in the UK.
Unless any extension of time is agreed, at the end of March 2019 the UK will cease to be an EU Member State. The mechanism for the UK to detach itself from EU supremacy will be the Great Repeal Bill, which is due to be introduced by the government around the same time as Article 50 is triggered. The intention of the bill is that when it is brought into force it will repeal the European Communities Act 1972, the Act that effectively took us into the EU, and will transfer all EU legislation onto the UK statute book. This will mean that even when we leave the EU there will be no immediate change to employment laws in the UK.
At the last Conservative Party conference, Theresa May said:
“… by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate. And let me be absolutely clear: existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.”
So it appears EU employment laws will be enshrined as we depart the union but once the UK has left they could be repealed, replaced or re-drafted by this or any future government. To what extent any laws are unpicked may depend on the outcome of the two year negotiation and what deal(s) the UK is left with. If UK businesses find themselves in a less favourable position they may be lobbying the government to pare back onerous employment law provisions. The political parties will no doubt see their promise to make changes – or not – as an opportunity to garner support on the political playing field.
Of course, reference to employment laws above is to those employment laws we have in the UK as a result of being in the EU. Some UK employment laws, for example those relating to unfair dismissal, do not originate in the EU and changes could be made to these at any time regardless of the Brexit process.
Whilst the triggering of Article 50 and our subsequent departure from the EU is unlikely to have an immediate impact on the rights of UK employees and obligations of employers under the law, this will still be a period of uncertainty for many businesses and their employees.
Some organisations are contemplating a move out of the UK either before March 2019 or preparing for it soon after. Should an organisation choose to relocate then its employees will be entitled to certain protections under UK employment law. Whether an employee can be required to move may depend on the terms of their employment contract and if the employee does not want to relocate, may be entitled to redundancy pay and the right not to be unfairly dismissed. Employees should be consulted with about any significant changes to their work or workplace.