BUSTING THE EU EMPLOYMENT LAW MYTHS
- Myth: leaving the EU after 43 years will bring an end to statutory holiday and sick pay
Entitlement to annual leave is set out in the Working Time Regulations 1998 (“WTR”) which are derived directly from EU law. Entitlement to annual leave is set out also in the employee’s contract and cannot just be taken away. The UK opted to increase the amount of holiday from the EU minimum of 20 days to 28 days in the UK. In theory the UK could remove this when leaving the EU but it would be regarded as unlikely. Sick pay is not directed by the EU only in case law such as HM Revenue & Customs v Stringer and others (“Stringer”) and Pereda v Madrid Movilidad SA (“Pereda”) in terms of entitlements when off sick.
- Myth: we should dismiss EU national employees and expect the same treatment to British workers in the EU who will have to return
To do so would be unfair dismissal and discriminatory. We are still in the EU until Article 50 is invoked and until (currently) the two years have elapsed after the Art 50 process has been instigated. There will be free movement until the UK leaves.
- Myth: the ECtHR (European Court of Human Rights) will have no further influence on the UK once we exit
Yes it will due to the fact that the UK signed up to the Council of Europe which is entirely separate from the EU. All cases involving human rights will still be heard by the ECtHR. What will change is the referral of cases to the European Court of Justice (ECJ) to ask the ECJ if the UK has implemented EU law correctly or interpreted a case properly on issues inter alia TUPE, collective consultation, discrimination or working time.
- Myth: once we leave the EU we will no longer have to abide by laws that originate in the EU
Remember that a law passed by Europe does not have direct effect on the UK until legislation is passed here. Therefore although the laws may have originated in Europe, laws have already been passed in the UK to reflect them and until these laws are repealed we must abide by them. It is difficult to understand how the government will cope with the amount of negotiation needed to unravel all of the trade deals and changing employment laws immediately is unlikely to be at the top of the implementation list.