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Brexit – a Bonfire for Employment Rights? Paul Gilroy QC writes for The Times – In Brief

This article by Paul Gilroy QC was first published in In Brief from The Times.

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.

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