Brexit in the workplace – what now?

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said,  companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK?  Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market.  If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

The future for Employment Tribunal fees?

Applications to the Employment Tribunal in Great Britain have nose-dived since fees were introduced in 2014. But is it good for 70% more people to bite their lip? And is there an alternative to calling their bluff?

Recent Employment Tribunal figures show that the total number of claims for unfair dismissal in Great Britain fell to 12,652 in 14/15.  Compare this to the 92,000+ unfair dismissal claims in 11/12.  While cause does not necessarily imply effect, the timing of this fall correlates exactly with the introduction of fees for each application to the ET.  The recent figures confirm the trend implied by previous figures since the introduction of the fees, evidence enough to convince the current Scottish Government to announce that, under the new powers in the Scotland Act, and IF they are re-elected in May, that they will withdraw the fees from the Scottish ET (which would bring Scotland into line with Northern Ireland, where the fees were never introduced in the first place).

Few people who take a case to ET return to that employer, even fewer successfully raise a claim and stay employed there. Conversely, the costs of recruiting and training someone new are enormous – the 2015 CIPD/Hay Resource & Management Planning Survey indicates that recruitment costs alone can be up to £10,000, not including training and development.  Compare that to the costs associated with resolving a problem so a member of staff can remain a member of staff.

At the same time, of the unfair dismissal cases that were upheld, the median award was £6,955, a drop in the ocean compared to the legal costs, operational disruption and emotional upheaval involved in a Tribunal – most often, there are no winners.

Far better would be to find a mutually acceptable solution – whether through mediation, developing managers or by introducing more effective processes, or a combination of all three. Invest a little in mechanisms to avoid the ultimate employer/employee conflict, and potentially boost morale and productivity into the bargain, or pay the costs – the choice is yours.