European directives on employment law have been enacted in literal or modified terms for decades into domestic UK legislation. And generations of UK employment lawyers have cited the jurisprudence of the EU’s Court of Justice, construing UK legislation “purposively” so as to give effect to directives in the most domestic of cases.
As the spectre of Brexit looms, speculation mounts as to its potential impact on UK employment law, even if that impact would not be felt for two years.
A key factor would be the nature of the UK’s relationship with Europe post-exit. The options resemble those of a car showroom. Will it be the Norwegian model? The Swiss? The Turkish? Or a more bespoke vehicle perhaps? A clean break would give the UK carte blanche to repeal much directive-driven law, but an accord entered into to assist with the transitional impact of withdrawal might bring with it conditions that EU-led legislation should remain unaffected.
Much UK labour law is inextricably linked to Europe – discrimination, working time, the rights of part-time and fixed-term workers and business transfers are just a few examples. But much of it is not, unfair dismissal being an important example. There are also areas where UK protection exceeds the minimum prescribed by Europe – rights to family leave, for example.
Even in a post-Brexit era, during the tenure of a right-of-centre administration, tearing chunks of long established European law from the domestic statute book would be both highly complex and politically difficult. The compliance costs for businesses having to engage reverse gear on entrenched areas of EU law would be enormous.
But why is this debate so much less important now than it would have been even two years ago? The answer is both simple and stark. British workers enforce their rights in the employment tribunal.
The introduction of tribunal issue fees – laughingly described by the former coalition government as part of the “red tape challenge” – has hugely hit the tribunal’s caseload, reducing it by some 70 per cent. So even if the UK were, immediately post-Brexit, to enlist a battalion of draftsmen to lay waste to decades of Brussels-driven legislation, the impact of that exercise would be much reduced.
Two hot tips if we do take the plunge with Boris: Expect “business” to campaign for a cap on compensation for discrimination. There is no intellectual justification for an arbitrary cap for unfair dismissal when in discrimination there is none.
And employers will call for the maximum 48-hour working week to be scrapped. Despite the power to opt out of the current maximum, in certain quarters this has been viewed as a deeply objectionable interference in the workplace.