Much domestic employment law legislation derives from European Law. Employment law is a devolved matter in the Northern Ireland Assembly. Whilst part of the EU, Northern Ireland is obligated to implement employment legislation in a way that complies with European directives. This has led to legislation like the Agency Workers (Northern Ireland) Regulations 2011, the Working Time Regulations (Northern Ireland) 1998 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
After Brexit, will employers be subject to less stringent employment laws?
Directives implemented in to Northern Irish law already are unaffected unless or until amended or repealed by the Northern Ireland Assembly.
Complete freedom from the EU would mean that the Assembly would be free to change and/or repeal legislation enacted because of its membership of the EU. This could mean for example, an end to the right for workers on sick leave to accrue annual leave.
Whether or not changes are made will depend on:
1. Political pressure: for example, it is unlikely that the public would support an end to the right to paid annual leave, or a complete repeal of discrimination legislation. There will also be political pressure from trade unions and pressure groups; and
2. What agreements are made with Europe, for example if the UK elected to join the European Economic Area (EEA), like Lichtenstein or Norway, it would be likely to accept most EU legislation. If this approach was adopted, little if anything would change for employers.
However it should be remembered that a large proportion of employment laws are not enacted because of any European obligation, such as the Shared Parental Leave Regulations 2014, the Service Provision Change (Northern Ireland) Regulations 2006 and enhanced rights to apply for flexible working. Much of the employment protection which flows from Europe reflects accepted standards of good employee relations. In addition, Northern Ireland and UK legislation enhances the minimum rights required by EU Law. An example of this is annual leave, where the Working Time Directive requires member states to provide for 20 days paid annual leave for workers, whilst the UK and NI legislation provides for 28 days paid annual leave.
A repeal of TUPE would cause uncertainty in the business community because tenders will have been priced to take in to account commercial risks and TUPE obligations. However there may be an opportunity to make TUPE more business friendly, for example by making it easier to harmonise terms and conditions following a TUPE transfer.
It should also be remembered that many rights derived from European law have been incorporated in to contracts of employment. Contractual rights cannot be unilaterally changed even if there is a change to legislation. In addition, the right not to be unfairly dismissed, is unaffected by the UK’s EU status.
It is likely that the UK/NI would need to demonstrate that it has minimum employment protections in place in order to make it a viable trading partner for other European member states. Any changes will likely necessitate public consultation. Nothing will change until Brexit actually occurs and it remains to be seen what freedoms the Assembly will have to change legislation and what public opinion will drive any such changes.
Sharon McArdle
This article is intended for general information only. For specific advice on anything to do with employment law, please do not hesitate to get in touch.
