When something as major as the
Brexit referendum takes place, there
is bound to be an impact in the
workplace. Public engagement was
high, and some employers issued
‘position statements’ setting out
their company view on remaining or
leaving.
Brexit backlash?
It is difficult to think of an event that has triggered such
polarised views, and employers need to be mindful of
managing how those views – from both sides – are expressed
in the workplace. Employees are entitled to a private life and to
hold opinions that the employer and / or colleagues may not
agree with, but that does not give them an absolute right to
say what they like.
Workplace policies on bullying, harassment and discrimination
will all apply in the context of Brexit conversations. A workforce
trained on diversity should recognise that derogatory
comments about an individual or group based on their
nationality, race or philosophical beliefs could fall foul of
your policies and could result in disciplinary action and even
dismissal.
It is also possible that a belief in either the EU or
alternatively the sovereignty of the UK might be capable
of being a philosophical belief, which is protected under UK
discrimination law. A belief has to be more than simply an
opinion, but in the past beliefs in climate change, anti-fox
hunting and left wing democratic socialism have all found the
protection of the law, so it is not unreasonable to assume that
beliefs around Brexit may also find protection.
Will there be changes in the law?
Not immediately. The exit rules provide that countries have a
minimum of two years to achieve this and time starts to run
from the date the Government serves formal notice to exit
the EU. Notice to leave the EU does not have to be issued
immediately and the timing of it is a political decision for
the UK Government. There are unlikely to be any legislative
changes during the exit period of two years following issue of
the Article 50 notice.
For now, the UK will continue to be bound by EU laws until
another agreement is reached or we unilaterally withdraw
from the EU (which cannot be earlier than two years from
the date the exit notice is served) and businesses will have to
continue to follow all existing UK laws that derive from the
EU during this two year period. European directives, such as
those regulating working time and holidays, TUPE, collective
redundancies, discrimination and agency workers have been
implemented via primary legislation in the UK and the UK
Government will have to decide whether to amend or repeal
these. They will not fall away automatically, simply because
of Brexit. However, EU laws that have direct effect in the UK
without the need for implementing legislation will fall away
unless the UK Government passes new legislation transposing
these into UK law. Similarly, the 5,000 statutory instruments
passed by the EU may also fall away unless new legislation is
introduced by the UK to replace them.
Any employment rights that have contractual effect between
employer and employee will (at least for the time being)
remain unaffected by Brexit, embedded as they are in our UK
law. Employers will not therefore suddenly be able to insist that
their staff work over 48 hours per week or take fewer holidays.
Immigration changes?
If an Australian-style points system is imposed for immigration,
the borders will not automatically be closed to non-UK
residents and transitional arrangements will have to be
negotiated as part of a post Brexit regime. Depending on the
outcome of those negotiations, there may be no automatic
right for UK citizens to travel and work outside the UK, or for
UK businesses to freely recruit staff from the EU, which may
cause problems for some UK businesses already struggling
to fill certain skills gaps. We may also see a surge in the
numbers of EU workers already working in the UK applying for
indefinite leave to remain in the UK so that they can avoid any
immigration restrictions that are imposed. Currently, they will
need to demonstrate that they have lived in the UK for at least
five years, although it is possible that the UK will increase these
requirements.
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