Employment law in a post-Brexit world

The UK left the EU on 31 January 2020 with a withdrawal agreement in place, a transition period and a framework for negotiations. The transition period has ended and most EU laws will be converted into UK law indefinitely, unless and until they are amended or repealed. Laura Morrison looks at the key areas of employment law that might change.


By Laura Morrison

Based in Denton’s Edinburgh office, Laura Morrison (laura.morrison@dentons.com) is a senior practice development lawyer with over 13 years’ experience as an employment lawyer.

Will we see change straight away?

As far as employment law is concerned, nothing will change overnight at the end of the transition period.  The vast majority of EU laws and case law will become “retained law” in the UK.  Over time, the UK employment law landscape may start to change. Whether employee rights are extended or restricted will depend on the government in charge in the UK at the time, as well as the terms of any future relationship with the EU. 

Changes will also be dependent on parliamentary time. Other, more pressing matters may take precedence given that the employment legislation framework does not require any immediate attention in the event of either a deal or no-deal scenario.

What areas are most likely to change?

  • Working Time Regulations: Retailers may be interested in several potential areas of reform in relation to working time. Many of you may have experienced frustration with developments in this area, particularly those that allow employees to accrue holiday whilst on sick leave and, in certain circumstances, carry over any unused holiday into the next year. If the government of the day decides to take an employer-friendly stance, these rights may change.

The calculation for holiday pay might also be ripe for change. As it would not have to follow European Court of Justice rulings, a UK government could legislate so that basic pay alone would become the benchmark again.

We might also see the 48-hour limit on average weekly working hours disappear.

  • The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE): It is likely that the government will keep the regulations, both to protect employees and to provide certainty to businesses used to factoring TUPE into their transactions, but it may amend certain aspects to make TUPE more employer-friendly.

For example, it might allow transferee employers to harmonise terms and conditions following a transfer more easily. At present, employees’ terms are protected on transfer and TUPE does not permit changes, other than in certain limited circumstances.

  • Discrimination law is also unlikely to change significantly. The UK legislated to protect against certain types of discrimination (such as sex, equal pay and race) before the EU introduced similar legislation. The principle of protecting employees from discrimination is now entrenched in employers’ practices. It is almost unthinkable that a government would seek to roll these protections back.

However, we might see the re-introduction of a cap on compensation in discrimination claims (as is the case for unfair dismissal). It is also possible that the government would legislate to permit positive discrimination in a wider range of circumstances than EU law allows.

Are there any areas of imminent change?

  • European Works Councils: As of 1 January 2021, there can be no new requests to set up European Works Councils (EWCs) in the UK. The government will preserve the rights and protections of employees in the councils. However, co-operation from other member states will be required. Where central management of an EWC is in the UK, the employer will need to transfer this to another member state or it will default to the member state with the most employees.
  • Immigration law: The new immigration system came into force on 1 December 2020 and, from 1 January 2021, EU and non-EU nationals will be treated equally. For more information, see our previous article on the immigration system from January 2021 at scottishgrocer.co.uk

Do you have a business, property or legal question or issue that you would like to know more about? 

Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email matthew.lynas@peeblesmedia.com