Leaving the EU could have a significant impact on employment law in the long term, given that much of what is currently on the statute books is derived from European directives. However, any consequences of a potential Brexit on the UK's employment arena are more likely to be a gradual evolution rather than instant revolution: all existing legislation is now UK legislation and has been brought in by our Parliament, so changes will require politicians to follow the normal parliamentary procedures in order to change the underlying law. Whilst judges may continue to use ECJ judgments as precedents, there will be no new referrals to the European Courts of Justice and no obligation to interpret UK legislation in line with European law.
Over the medium to long term, some legislation may well be overhauled. In our view, it is unlikely that the government will take steps to dismantle the protections given under the Equality Act or unfair dismissal rules, but it is possible that some of the provisions may be diluted. That said, if the government is free from the precedents set by the European Court of Justice and the directives themselves, it's possible that the Agency Worker Regulations could disappear or be severely pruned, as could the provisions in the Working Time Regulations relating to holiday pay and working hours. TUPE (Transfer of Undertakings (Protection of Employment)) may also be affected – particularly in relation to the harmonisation of terms following a transfer. Withdrawal from the European Convention of Human Rights is not an automatic outcome of Brexit, but is something that 'Leave' campaigners have discussed. Any change, though, will be a complicated and lengthy process. The domestic courts will be bound by their own precedent until there is a change in the legislation.
The implications for employees may be more immediate. The freedom of people to work in any EU state will expire, as will the right to work in the UK.
If you have any questions arising from this, please contact Greg Campbell; 020 3321 7234