In theory, once the UK leaves the EU the government will have wide-ranging powers to reduce or even remove some employment rights.
Commentators have been predicting large scale restructuring in certain sectors and some organisations are already taking steps to relocate staff.
However, as far as any significant alteration to employment rights is concerned the reality is that drastic change is unlikely in the immediate future. This is because the government will need to negotiate its trade relationship with the EU and any agreement is likely to require the UK to maintain a certain level of protection for employees. In any event, a significant amount of employment law is entirely domestic for example, unfair dismissal legislation, national minimum wage and the right to request flexible working.
The current immediate risks for employers primarily concern the potential impact on staffing as a result of changes to immigration control depending on what is negotiated concerning the free movement principle. Employers therefore need to consider what measures can be put in place to protect their business.
Significant Impact post Brexit
- Review practices and consider the most innovative and cost-effective options for attracting, retaining and rewarding talent e.g. new models for agile and flexible working, training programmes and incentivisation plans linked more directly to individual and company performance on a wider scale.
- Assess the potential impact upon operations and staffing needs. Where appropriate, employers should reassure employees that the organisation is following the situation closely – particularly migrant workers with shortage or specialist skills who are in high demand and who may become disillusioned with the uncertainty of Brexit. Offer access to our immigration clinic to capture permanent residency.
- Review restrictive covenants applicable to key staff to ensure that they are sufficiently narrowly drafted to prevent such staff likely to leave from poaching clients, prospective clients, employees or teams. If the current restrictions are insufficient or there are none, consider introducing them now, subject to legal advice.
Potential Significant Impact post Brexit
- Employers should consider whether they are able to objectively assess their staff should they need to reduce the workforce in any way. They should ensure that appraisals are up to date and that management has actively dealt with poor performance, misconduct and long-term sickness absences.
Lower Impact post Brexit
- Most UK employment contracts reflect EU-derived rights particularly on holiday and working time and these will still be enforceable until they are varied by the employer or agreed with the staff. If there is a “hard” Brexit, employers may wish to consider whether to change contractual terms and if so, this should be through carefully negotiated changes rather than the mechanism of wide-scale termination and re-engagement on revised terms.
- Consider whether any key personnel rely on non-UK qualifications for their role. These might not be recognised post-Brexit.