NI Blog: Employment law may be cushioned from Brexit shocks



Rosemary Lundy
Rosemary Lundy

Rosemary Lundy, employment law partner at Arthur Cox’s Belfast office, outlines how Brexit will affect employment law in Northern Ireland.

Ten days on from the announcement of the EU referendum result, there remains some confusion as to what the post-Brexit future holds for Northern Ireland.

This could be the case for some time as, once Article 50 of the Treaty on European Union is triggered, the UK government has two years in which to implement the decision to leave. It is therefore as yet uncertain when exactly the UK will exit the EU.

While there’s no doubting how momentous the Brexit decision was, the fact is there will be no immediate change to employment legislation as a consequence of the vote.

A substantial amount of Northern Ireland’s employment law is derived from EU legislation, including working time regulations, collective consultation obligations, anti-discrimination rights, rules on the transfer of undertakings (TUPE), duties to agency workers and family leave.

Whilst technically these laws could all be repealed once the UK leaves the EU, it is highly unlikely.  The extent to which current employment legislation will be affected could depend largely on the model chosen for the UK’s future relationship with the EU.

It remains to be seen whether that future relationship will find a basis in the ‘Norwegian’ model (of single market access free from certain EU rules), the ‘Swiss’ model (of negotiating on a country by country basis) or reliance entirely on the UK’s membership of the World Trade Organisation.

The most probable outcome, however, is that EU law will continue to significantly influence the UK’s employment law regime even after the UK departs the EU, in most circumstances causing only minimal changes for employers.

Looking at specific employment law issues, a significant overhaul of the existing legislation on issues such as anti-discrimination law, TUPE and employees’ family-related rights is unlikely.

The majority of the Working Time Regulations are likely to remain, although there are elements of the right to statutory paid holiday that are deeply unpopular with employers,and which may well be repealed.

In particular, the Agency Workers Regulations 2010 are likely to be subject to change and, if the UK does not negotiate to maintain freedom of movement rights after the Brexit, EU workers might be required to apply for visas under UK immigration rules.  This would impact upon international employers of all sizes.

It should also be noted that, given the close ties between Northern Ireland and the Republic of Ireland, and the additional complexities of implementing a physical border between the two countries, Brexit could have substantial implications for employers operating on a cross-border basis.

In the midst of the prevailing uncertainty, one surety is the need for a very significant assessment by the UK and Irish governments of their relationship. Extensive bilateral negotiations may be required to determine how both countries, with such a long and close history, interact in the future.

  • Arthur Cox will host a forthcoming Legal Island seminar examining the impacts of Brexit on employment law. The seminar will take place on Thursday, 28th July at Arthur Cox’s Belfast offices. Please call 028 9023 007 for further information.

Tags: Brexit



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