Unexpected employment law impact of Brexit
07 September 2016
Following the EU referendum decision, we have already seen a significant impact on the UK's political and economic landscape. However, there will be no immediate changes to the legal landscape including the UK's employment laws. Over the next few months, we should obtain clarity on the timing for invoking Article 50 and then we will have two years of negotiating the UK's exit from the EU. Throughout that period, the UK will remain bound to comply with EU legislation and so there will be no change for some time.
Many of the UK's employment laws emanate from the EU and these EU derived laws have been implemented in the UK through domestic legislation which means that there will be no automatic change as a result of the UK leaving the EU. Against this background, the position is therefore currently "business as usual" so far as employment law is concerned.
There is plenty of speculation about what might ultimately change and consensus is focussed on the agency worker rules, TUPE, statutory holiday pay and aspects of the Working Time Regulations.
However, what has taken many employment lawyers by surprise has been the short term impact from the decision to leave the EU. Over the past few weeks, we have seen an increase in enquiries related to two particular areas of discrimination. The first relates to the risk of discrimination against EU nationals which has itself arisen in a couple of ways. There have been allegations that employers have elected not to recruit EU nationals as they are concerned that they will not be able to obtain the necessary visas in due course and we have also seen examples of the bullying and harassment of EU nationals by their colleagues. This has included verbal comments and, in one instance, providing an EU national with an empty box to pack up their belongings. Both instances are examples of discrimination on grounds of nationality.
A further area relates to philosophical belief. Under the Equality Act, employees are protected from discrimination on grounds of their genuinely held philosophical belief. This is quite a rare aspect of discrimination law but we have seen a number of issues arise where employees claim that they have been treated less favourably because of their EU referendum views. In these examples, the less favourable treatment has arisen through angry social media posts from colleagues that could constitute harassment. However, less favourable treatment could equally arise if an employee was not promoted or failed to receive a pay rise. Given that many employers have made recommendations on how to vote, they are potentially at greater risk where their view diverges from the employee bringing a claim.
It will, however, be difficult for an individual to succeed in such a claim. Firstly, they will need to demonstrate that their views on EU referendum are a philosophical belief. This is much more than merely voting a particular way. Protection is only available if they can show that the underlying beliefs behind it (for example, a belief in open borders, free trade etc) are cogent and genuinely held. Examples of belief that have been upheld as philosophical beliefs are anti-fox hunting, spiritualism and a belief in democratic socialism.
What can employers do to limit their risks? Employers should be reminding employees about the appropriate use of social media and ensure that their social media policies are up to date. Where there has been any discord between employees, employers should seek to calm the situation and remind employees to respect differing views. Finally, employers should be mindful of the ongoing risks with their EU national employees, they should be cognisant that this is an unsettling time for them and to ensure that this is not compounded by instances of discrimination.