Donald MacKinnon, director of legal services at Law At Work, reflects on what effect the UK leaving the EU could have on employment law and health and safety
The starting gun has been fired for the EU referendum and the big beasts of the political world are lining up to persuade us to either stay or leave.
Should the vote be to leave the EU, what will the effect be on employment law and health & safety in the UK? Will we be ushering in a golden age of small Government and minimal regulation or will it be business as usual?
It is worth noting at the outset, the sheer extent of European influence on UK employment law, much of which are interpreted from directives emanating from the EU. UK equality law, brought in by The Equality Act, comes from the European Equal Treatment Directive. Limits on working time and right-to-be-paid annual leave come from the Working Time Directive, the protection offered to employees on the transfer of a business are based solely on European law. European Court decisions are binding for UK courts and influence how UK law implements and interprets the legislation flowing from directives. A recent example of this being the furore over the correct interpretation of calculating holiday pay which threw UK employers into such a panic over the past couple of years.
In theory, ‘Brexit’ will free the UK Government to roll back a raft of employment rights and health and safety regulations. Yet, there is every reason to believe that the impact of an exit from the EU may have a lesser impact that some fear and others hope.
Any vote to exit would be followed by negotiations, generally expected to last two years, with any radical changes unlikely to be implemented until these concluded. It seems generally accepted that, even in the event of a vote to leave, the UK would wish to retain some form of relationship with the EU, perhaps along the lines of that enjoyed by Norway or Switzerland. Such a relationship would involve the UK having to accept some EU legislation, including employment legislation.
Even if the UK were to sever all ties with Europe, there are practical difficulties with a ‘slash and burn’ approach to employment and health and safety regulations. People may complain about interference from Brussels, but how many in practice would be happy to lose their right to paid annual leave or accept a situation where employers could freely chose to discriminate against job applicants based on the race, gender, age or sexual orientation? Again, people may bemoan a ‘where there is blame, there is a claim’ health and safety culture, but few would like to attend a workplace where safety rules were not implemented and enforced.
Far more likely than a wholesale change to the employment landscape, is a tinkering around the edges of current employment and health & safety regulation. One or two of the more unpopular, or less obviously necessary, regulations may disappear, for instance the Agency Workers Regulations, would be in the firing line. The right to paid leave under the Working Time Regulations would in all probability remain in place, but some of the other restrictions on working hours could go.
It is difficult to see a Government, of any hue, make any significant changes to discrimination legislation or ‘family friendly’ rights. The right to claim unfair dismissal is of the few pieces of employment legislation that derives wholly from UK domestic law and is unlikely to be affected.
And perhaps that is the lesson of the current debate over Europe. It has excited much passion on all sides, but maybe the truth is that, certainly in employment and health & safety terms, no matter the outcome, not a lot may end up changing.
Donald MacKinnon is the director of legal services at Law At Work.