On 23 June 2016, the UK voted to leave the EU. Until the shape of the UK’s exit has been determined, its direct legal implications for employment law in the UK are unclear. A significant proportion of the UK’s employment law is derived from EU law, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and the agency workers regulations.  Commentators have been speculating about which of these may be repealed, and when. However, it is likely that EU law will continue to exert a significant influence on UK employment law for some time. It is unlikely that any government will repeal say the Equality Act 2010. There are some EU-derived employment laws that may be repealed sooner rather than later.

These may include:

  • Some aspects of the Working Time Regulations 1998, possibly those giving holiday rights to workers on long-term sick leave and the inclusion of commission and overtime payments in holiday pay. Commentators also think that the 48 hour working week may also be abolished.
  • The Agency Workers Regulations 2010.

Certain law that are seen as unduly restrictive for example the TUPE regulations or redundancy collective consultation may also be varied. Some have suggested that the government could impose a cap on discrimination compensation (as unfair dismissal compensation is capped), something which the ECJ ruled was incompatible with EU law.

Much will depend on the kind of ongoing relationship the UK has with the EU. For example, if the UK adopts the “Norway model”, becoming part of the European Economic Area (EEA), many EU regulations and directives concerning employment rights – although notably, not the Equal Treatment Framework Directive – will continue to apply, and these rules would be interpreted and applied by the European Free Trade Association (EFTA) court, which is also bound by decisions of the ECJ. It should be noted that, because the Equal Treatment Framework Directive does not apply, EEA countries are not obliged to put in place EU law prohibiting discrimination on grounds of race, disability, age, sexual orientation or religion and belief, although, as stated above, it would be very unlikely that these protections, which are enshrined in the Equality Act 2010, would be repealed in the UK. Even if we do not join the EEA, any deal which sees the UK remaining in the single market or which involves a free trade agreement with the EU is likely to require continued adherence to fundamental EU employment rights.