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Anticipating the Future

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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