In June a referendum will decide whether or not the UK should exit the European Union. If we decide to leave, what might be the implications for employment law?
It’s worth reminding ourselves that the EU has been the source of many employment rights, including working time, work-life balance, key areas of equality including equal pay for work of equal value, and the treatment of part time, fixed-term contract, and temporary agency workers.
If there was a vote in favour of leaving, many complex issues would have to be resolved. It would take at least two years, if not longer, to serve notice of withdrawal and agree terms with the remaining Member States, so any changes wouldn’t be immediate.
In practice it is unlikely that a government would simply remove wholesale the UK laws that originate from the EU. This is because many have now become norms of the workplace, and their removal would cause considerable disruption to established working relationships.
Even employers are likely to resist the legal uncertainty this would cause. A few years ago, for example, employer bodies opposed some changes to TUPE (Transfer of Undertakings) regulations (which are derived from Europe), proposed by the then UK coalition government, in relation to the contracting out of services.
The regulations protect employees in circumstances where the identity of their employer changes, such as where health services are contracted out to the independent health sector by an NHS body, by guaranteeing that contracts of employment are unchanged, and rendering dismissals automatically unfair if by reason of the transfer.
The previous Labour government had expressly extended the protection of the legislation to situations where a service contract changed to a new provider, whether through a tendering or re-tendering exercise. So, for example, where a client decides to re-tender for occupational health services, and the current provider loses the contract to a new provider.
The Labour amendments to the regulations made clear that TUPE would apply in many such cases. Employers came to value the legal certainty provided by the legislation, even if they didn’t generally approve of the Regulations, and hence they rejected the Coalition’s proposals to remove contracting out situations from TUPE protection.
Currently, the workplace rights derived from EU law ensure a “level playing field” for all Member States, so that one member state cannot undermine another by offering less workplace protection and poorer wages.
But one concern arising from exit is that remaining EU member states may threaten trade sanctions, such as the imposition of tariffs and so on, if the UK seriously undercut some of the basic employment rights (as described above) now common across Europe.
Another point worth remembering is that in some instances UK employment law has developed independently of EU minimum requirements. One example here is more generous provisions for unfair dismissal (although these have recently been eroded), which derive solely from domestic legislation. In such instances, one assumes that much would remain the same.
Significant restrictions on freedom of movement could impact negatively on vital labour needs, and in turn limit travel by UK citizens abroad. Given current labour shortages across the health care sector, any further restrictions on travel to and from abroad, for work, could have potentially damaging consequences for everyone.
One area specifically mentioned by the Prime Minister as being in need of reform is the Working Time Directive.
In 1998 this introduced a maximum 48 hour working week for most occupations (averaged over 17 weeks); a daily rest period of 11 consecutive hours; a weekly rest period of 24 consecutive hours; and rest breaks during the working day.
Notwithstanding the opt out of the 48 hour limit, it is estimated that, compared to 1998, 700,000 fewer employees now work more than the 48 hours limit.
Equally important, the directive gave a statutory right to paid annual leave which particularly benefited part-time women workers, and the Court of Justice of the European Union has since given a generous interpretation to the exercise of the leave entitlement in circumstances of sickness absence.
Christopher Cox is Director of Membership Relations at the Royal College of Nursing, which represents more than 420,000 nurses, student nurses, midwives, and healthcare assistants.