Does Brexit make us a Golden Leaver?
As the song goes:
“They say that breaking up is hard to do / Now I know / I know that it’s true / Don’t say that this is the end / Instead of breaking up I wish that we were making up again…”
And that pretty much sums up what the Employment Lawyers Association (ELA) concluded when they reported back to the government recently on the impact of Brexit on key areas of employment law.
The starting point is that I have not come across one single employment lawyer, regardless of their politics and whether they act for employers or individuals, who feels that Brexit is a good thing for employment law.
All employment lawyers believe that workers’ rights are important. This includes those who act for businesses, because as the rights of the individual have increased, the power of unions and collective bargaining has reduced. In many sectors, unions have all but disappeared.
Europe gave us several things that lawyers like:
First, a common benchmark for, and understanding of, employment rights in common with our trading partners
Second, a respected court that has been the final arbiter to interpret employment legislation, and able to vet whether individual governments applied this common properly in legislation
The Government agrees with this and has assured us that UK workers’ rights will keep pace with those in Europe. And to begin with this will be correct, as there is no intention to change our employment laws overnight, so current EU rulings will remain useful and effective for us.
However, the world of trade and technology is changing fast. Our labour laws will need to change and adapt. But the changes we make may not align with our European business partners and uncertainties will creep in, which can only be rectified by new legislation and UK led decisions.
As a result, the ELA has predicted, Brexit will result in a divergence between UK law and EU law, and of a weakening of the application of existing European jurisprudence, leading to a diminution of workers’ rights.
None of this is fatal: we have the examples of Australia and the Canada, where many labour laws are aligned to what is happening in the EU. This is because they want to be respected trading partners. The UK will be able to do the same thing, and has a judiciary well able to provide sensible rulings, though perhaps less able to keep an unruly UK government in check.
But don’t expect the UK, once free of Europe, to become lighter on its legislation. The UK is notorious for its ability to overcomplicate and regulate. Look no further than the roll-out of Data Protection and GDPR (and its guidance notes, which ran to 000s of pages) or to the Taylor Review in 2018 which, if followed, may well create more confusion about the status of workers and agency workers.
The real problem is that things are going to be more uncertain, and therefore more expensive.
So the answer to the question, Does Brexit make us a Golden Leaver? is that Brexit will be good for Golden Leaver, but not for company or individual clients tackling this new landscape.
My prediction is that we will also see the return of the unions, who will take on the mantle of popular protectors of worker’s rights through collective bargaining, and the only credible lobby for individual workers’ rights in parliament now that the Government is no longer answerable to a common standard on employment legislation.