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Are You Up to Date With UK Employment Law After Brexit?

BY: Emma Gross, Head of Employment at MCG Solicitors

Many working rights are derived from EU law, but these could be scrapped or changed after the UK leaves the Union.

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As an employment lawyer I am often asked for examples of laws and rights the UK has been compelled to adopt by its membership of the EU.

While the majority of our laws have been derived in parliament we are governed at the highest level by EU legislation. Our ‘supreme court’ is the European Court of Justice and the UK cannot currently adopt national laws that are incompatible with European law.

Parental leave is an obvious example of an EU-based right. It entitles employees to up to 18 weeks’ unpaid leave per child in addition to statutory maternity, paternity, adoption and shared parental leave. Given that parental leave is unpaid it is unlikely that this right will be repealed when we formally depart from the European Union.

Discrimination is another. While the UK recognised sex, race and disability as protected characteristics the EU extended this to include age, religion or philosophical belief and sexual orientation.

Although these new protected characteristics have been widely accepted, in the absence of EU control the UK may decide to introduce a cap on the level of compensation currently being awarded in discrimination claims.

Surprisingly, holidays and holiday pay are an EU-based right. The EU provides that worker holiday entitlement is a minimum of four weeks. The UK exceeds this by providing 5.6 weeks’ holiday, but it is the EU that insists that workers on maternity or long-term sick leave are able to carry over their annual leave entitlement to the following year. Moreover, the EU stipulates that holiday pay should now include overtime and commission payments.

The complexity that is TUPE is another EU-based right. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to a business transfer or a service provision change. TUPE introduced three concepts into UK employment law:

  1. The automatic transfer principle whereby employees transfer to the transferee who inherits all rights, liabilities and obligations in relation to them.
  2. Protection against dismissal relating to a TUPE transfer.
  3. The obligation to inform and consult with representatives of the affected employees.

While many believe the rules provide certainty, others argue that harmonising terms and conditions is difficult and that the level of due diligence and consultation is excessive.

Working time is an EU-based right requiring the UK to enforce a 48-hour limit on the average weekly working time. We did adopt the 48-hour limit but simultaneously introduced our infamous opt-out provisions enabling workers to agree in writing to opt out of the rules. This has been under review in Europe for several years.

The maximum limit on weekly working time may well be removed altogether following Brexit, along with the current provisions enabling travelling time to count towards working time.

Fixed-term employees have the right to be protected from less favourable treatment than permanent employees. Part-time workers are protected in the same way as full-time workers. These EU-based rights have been widely criticised for presenting yet another hurdle for employers.

Another EU-based right unpopular in the labour market relates to agency workers. EU law stipulated that following a 12-week period agency workers should be treated as permanent members of staff with serious ramifications for holiday entitlement and rates of pay.

Equally unpopular with our government is the EU rule that if an employer becomes insolvent, employees can claim monies from the secretary of state.

Probably the best-known EU-based right is May 2018’s General Data Protection Regulation (GDPR). When we leave Europe the GDPR will be replaced by an amended Data Protection Act with references to other member states and EU organisations removed. The information commissioner has stressed the importance of international consistency on data protection.

A key factor will be the need for UK businesses to receive personal data from the EU. The UK will have to demonstrate to the European Commission that it can continue to provide an ‘adequate’ level of protection for personal data processed in the UK.

Brexit is bound to cause upheaval for UK employment law but exactly what the future holds is anyone’s guess!

Brexit Inhibiting Foreign Interest in UK Finance Jobs
June 24, 2019

A staffing crisis in the financial sector may be on the horizon, as Brexit causes a decline in interest in City jobs

Foreign interest in UK banking jobs has fallen by 12% since 2015, according to Indeed.

Initially interest fell most sharply among prospective candidates from Europe. Between the first quarter of 2015 (when the likelihood of a referendum on the UK exiting the EU started to grow) and the first quarter of 2018, EU jobseekers’ share of all clicks on London finance jobs on the Indeed website fell from 7.8% to 5.9%. Read more

Is Fashion Manufacturing Coming Home?
June 21, 2019

Rapid globalisation and complex supply chains mean brands have hitherto largely relied on production overseas, where labour is often cheaper and economies of scale have enabled strong expansion.

But in light of Brexit and its potential impact on global trade and workforces, the reindustrialisation of Britain, for the textiles industry at least, could prove attractive to many domestic brands

Britain is a clothes-hungry nation: we buy more garments than any other country in Europe. Fast-fashion behemoth Primark operates more stores here than in any other country in the world and its biggest global outpost, an 161,000-square-foot giant, has just opened in Birmingham.

Read more

Skills Shortages in the UK Economy
April 18, 2019

The latest Skills Shortage Bulletin from The Edge Foundation. Links is now available.

OLLY NEWTON, Director of Policy and Research, Edge Foundation explains what is in the bulletin:

In this edition, we look at the current state of the labour market through research by CIPD. This suggests that, with so many graduates in non- graduate jobs and workers not making full use of their skills, as many as half (49%) of UK workers could be in the wrong job, based on their skill level.

Read more

Brexit Resources
April 8, 2019

These Brexit factsheets produced by Aspire International look to help keep young people and careers practitioners up to date with the impact of leaving the EU.

Aspire International are constantly updating and adding to the factsheets available below.

Brexit Briefings


Employer Confidence Plunges as Uncertainty Over #Brexit Bites
March 29, 2019

New data from the Recruitment and Employment Confederation (REC) shows employers’ confidence in economic prospects for the UK have dropped again, by eight percentage points from last month to net: -28.

This is the lowest level since the JobsOutlook survey began measuring sentiment about the economy amongst Britain’s businesses and is 54 percentage points lower than in June 2016.

Falling confidence in the economy is now affecting hiring decisions in respondents’ own firms. Employers’ confidence in making hiring and investment decisions declined by six percentage points from the previous month to net: -1, the first time this measure has dropped into negative territory since the survey started in 2016.

Despite this weaker outlook, it is clear that employers are ready to hire in some areas – especially where there are skills shortages. More employers planned to increase, rather than decrease their permanent headcount in the short-term, at net: +17. Over the medium-term, forecasts for permanent hiring fell three percentage points this month, but remained positive at net: +22.

Neil Carberry, chief executive of the Recruitment & Employment Confederation, said:

“A year of falling business investment and weeks of Brexit inertia mean no-one should be surprised that employers’ confidence in hiring for their own business is now dropping. For months, businesses have told us that they were concerned about the general outlook for the economy – it is clear to us that this concern is now closer to home. Lower use of temporary labour is a sign of lower demand.

“But our jobs market is robust. Even now, recruiters are finding people new jobs and helping companies to compete. The fact that permanent hiring plans are still positive is a sign that the economy will deliver, if the fog of uncertainty is lifted from British business.

“The extension to the Brexit deadline gives us some space to find a pragmatic deal that will give the UK’s businesses the certainty they need to invest and create jobs. And it avoids a no deal, which the majority of recruiters – in line with the majority of all British businesses – see as deeply problematic for the economy and the jobs market.

“But we cannot delay forever. It is in politicians’ power to make the weaker data we see today a blip. Our labour market is strong. Giving firms certainty about a future deal that supports trade, jobs and investment would get the UK back on track.”

Other statistics from this month’s JobsOutlook include:

  • Half (49 per cent) of UK employers expressed concern about the availability of permanent-hire candidates, with a lack of Engineering & Technical and Health & Social Care workers continuing to cause most concern.
  • At net: -7, the balance of sentiment for hiring agency workers in the short-term was 13 percentage points lower than a year earlier. Sentiment in the medium term was 21 points lower than last year, at net: -8.
  • Following this quarter’s decline in anticipated demand for temporary workers, 35 per cent of employers intending to hire temporary workers expressed concern over the sufficient number of agency workers with the necessary skills they require. This is the same proportion as a year earlier. Employers are expecting the most severe skills shortages among construction workers, followed by education workers and drivers.
  • Four in five employers (82 per cent) had either no surplus workforce capacity, or such a small amount that they may need to hire more staff if demand increased.
  • Around half of hirers highlighted using agency workers to manage uncertainty (47 per cent), and access to short-term skills (51 per cent), as important reasons to use temporary agency workers.
  • Four in five (83 per cent) employers highlighted that the geographical and/or skills sourcing expertise of an agency was an important criterion when selecting their recruitment agency partners.

JobsOutlook is produced by the REC in partnership with ComRes. ComRes interviewed 600 UK employers involved in hiring by telephone between 11 December 2018 and 21 February 2019. Data were weighted to be representative of UK adults in employment by region, broad industry sector and public/private split. ComRes is a member of the British Polling Council and abides by its rules.


Graduates Worried About Job Prospects Post-Brexit
March 13, 2019

Most graduates (78%) think that Brexit will negatively affect their careers, according to research by Milkround

A further 52% of this year’s graduate pool think it will be more difficult to secure a graduate role, similarly to the period following the 2008 financial crash.

Half (50%) of those that graduated during the global financial crisis said they found it more difficult to secure a graduate job because of the crash, taking an average of eight months to find their first career job. Ten years on, three-fifths (58%) say the 2008 crisis had a negative impact on their career.

The financial crisis also in some cases obstructed 2008 graduates’ entry into their desired field, with half (50%) saying they had to change their post-university plans and three-fifths (62%) taking a job in a different sector because of lack of available roles.

Milkround warned that this year’s graduates are taking a similar approach to delaying their entry into the job market, with 55% planning to postpone looking for their first role. Sixty per cent expect to take a position in a different sector, 18% think they will need to do temporary work and 9% plan to go travelling instead. The results also reveal a 15% rise in the number of graduates planning to take up a postgraduate qualification rather than heading straight into work. Read more

What Happens to Data Protection After a No-Deal Brexit?

The following article was written by Heather Burns – Tech Policy & Regulation SpecialistHeather Burns

With the prospect of a no-deal Brexit becoming likelier by the day, tech policy & regulation specialist Heather Burns explains how to prepare your data flows for a disorderly exit from the EU. 

As the 29th of March approaches faster than any of us are able to comprehend, businesses have been left with little choice but to prepare for a no-deal Brexit scenario. 80% of the UK’s businesses trade in services, and data flows are their fundamental product. Those flows, as with so many other areas of commerce, have been rendered collateral damage in a political game no-one voted to play.

Read more

EU Students Studying in the UK
July 4, 2018

The government have announced that the status of EU students studying in the UK will remain the same for an extra year after Brexit.

Damian Hinds said: “Students from the EU make an important contribution to the universities sector and it is a testament to our system that so many students from abroad choose to come and study here,” Hinds said. “Today we are providing clarity and certainty on their fees for the duration of their courses.”

This clearly does not represent a long-term solution but is likely to be welcomed by HE institutions as a necessary short-term step, to clarify the position of EU students.

The HE Commission is due to publish its report on HE Exports in September.