So, we now know that the date of the referendum as to whether the UK chooses to stay or leave the EU will be 23rd June 2016 and we also know a decision to leave would have significant consequences. But what do we really know about how such a decision would play out in practice and specifically, what does this mean for employment law and employers?
The first thing to note is that a decision to leave the EU wouldn’t mean a ripping up of all EU laws overnight and what happens next will to a certain extent depend on how the EU law has already been implemented in the UK.
Where Parliament has enacted “primary legislation” to give effect to obligations at European level, this legislation will remain unaffected, until such time Parliament chooses to repeal or amend it. One example of legislation enacted in this way is the Equality Act 2010, which stems from the EU Equal Treatment Directive. However, not all employment law came about this way and instead was enacted by way of “secondary legislation.” The European Communities Act 1972 incorporates EU law into domestic law and using the powers under that Act, Parliament can enact employment legislation as “secondary legislation.”
Should the public deliver a decisive vote to leave the EU, the 1972 Act would most likely be repealed. This would mean that the piece of primary legislation supporting the introduction of the secondary legislation would disappear and potentially all Regulations passed in this way, such as the Working Time Regulation 1998, would cease to have effect, as there is no primary legislation underpinning them.
Of course any implemented changes would have a significant effect on employers, who have to ensure that their employment practices are compliant with employment legislation. It is anticipated that the Government would hope to avoid a seismic shift in the law and the market uncertainty which would result and hence instead adopt a piecemeal approach, amending legislation bit by bit, as and when deemed necessary. In reality, it might be that employment law is relatively far down the pecking order as to what requires the most urgent amendment in the eyes of the Government.
So, the only thing we can really count on as a certainty if “Brexit” becomes a reality, is uncertainty itself. The rest remains to be seen.