Blog: Possible impact of Brexit on UK employment law – some informed guesses – Lexology

So if in some parallel universe you had somehow acquired the ability to strike red lines through EU-derived employment legislation, where would you put them? That is a question I put well before the Brexit Referendum to countless HR audiences, the very people one might think would be straining at the leash to make changes where possible, but in every case, it was substantially without response. Why?

IMHO, because HR audiences have two things which most of the “red-tape bonfire” politicians concerned do not – an understanding of the industrial chaos which would greet any material undermining of employee rights and protections on the one hand, and on the other, the awareness that there are many worse balances to be struck between employer and employee rights than the UK has at present. It may well be that when it comes to what actually feeds that bonfire, all that political rhetoric around “taking back control”, etc., will founder on the very limited feasibility and still smaller necessity of making any actual change. It would be political suicide, for example, to push for reforms which weakened health and safety protections, made discrimination easier or cheaper, or constituted any material assault upon the voice of the unions.

Therefore what the politicians really need is some bits of EU-sourced employment law which no one would miss, which won’t actually affect any of the big picture stuff and whose scrubbing from the statute books they can paint as a triumph of self –determination. After all, these are most likely to be extrapolations from essentially sensible EU principles which through clunky domestic legislation or case law have transcended the intentions of the original Directives into something really quite silly.

Here are my suggestions – if you think there are others, please let us know.

1. The protection of terms of employment on a TUPE transfer, specifically the prohibition on the employee agreeing any form of “swings and roundabouts” variation to his contract at the behest of the incoming employer. Nothing in that should take away the employee’s right to claim breach of contract or constructive dismissal if that change is imposed without his agreement, but at least the law could accept that a detrimental change to terms in one respect could be valid if the employee makes an informed decision to accept a compensatory uplift in another.

2. The WTR accrual of holiday during long term sickness or family leave. The very worthy objective of the Working Time Directive was that employees should be entitled to minimum rest periods to recuperate after periods of work. However, the Directive made no exception for periods over which the employee was employed but not working (and hence in principle not doing anything requiring time to recover). It is that failure which provides an unexpected extra month’s pay to those taking a full year’s family leave or the same sum annually for those on long term sickness or PHI benefits. The link between the entitlement to rest and the original health and safety imperative behind it seems to have come adrift somewhere. It does not appear to me that it would be beyond the wit of the UK legislators to exclude certain durations and causes of absence from statutory minimum holiday accrual.

3. Relatedly, the suggestion that if you are sick whilst on holiday, you have a right to further holiday in lieu. Even leaving aside the administrative issues which that causes employers, what was wrong with the lesson which all of us have had to learn at some point, i.e. that if you lose a chunk of your holiday through alcohol poisoning, sunstroke, iffy paella or other lifestyle choice, that is your look-out. As anyone who has been away with young children knows, there is nothing in the law which requires statutory holidays to be relaxing, recuperative or enjoyable in any way, so why make an exception for vacation days spoilt through illness?

4. In the same vein, the extended carry-over of statutory minimum holidays beyond the point of their accrual. At present, EU case law suggests that you don’t lose untaken holiday until at least 18 months after the end of the holiday year in which it was accrued. That is on the basis that by that point, it can no longer possibly have any restorative effect in relation to work done in that holiday year. That 18 months cut-off is entirely arbitrary, and there must be good arguments that the actual period of time after which holidays no longer help your mental or physical recovery from a particular period of effort is far smaller, maybe a few months only. Leaving aside obvious anomalies like the pandemic or special circumstances agreed with the employer, who would oppose an amendment to the WTR to the effect that holiday not taken within, say, 3 months of the end of the accrual year is lost?

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