That is the question (facing the UK electorate on 23 June 2016).

Whether you are currently leaning, with the Prime Minister David Cameron, towards the view that ‘tis Nobler to suffer the Slings and Arrows of the more outrageous terms of our EU membership in order to gain the benefits, or whether, like the Mayor of London Boris Johnson, you would rather take Arms (metaphorically) against the (Mediterranean) Sea of troubles and, by opposing, end our EU membership[1], you have another three or so months to decide.

Whatever your view, the forthcoming referendum is a momentous choice for the UK electorate, and it is arguably one’s democratic duty to arm oneself with as much knowledge as possible in order to make a fully informed decision.

It is to that end that I would like to bring to your attention some potential implications of Brexit on employment law in England and Wales.

First, a (brief) history lesson:

History of EEC and EU employment legislation

  1. The EU (formerly the EEC) has issued directives relating to employment and labour law since the 1970s, and Britain has incorporated more than four decades-worth of directives from Brussels within the corresponding domestic legislation.
  2. Early labour law directives regarding collective redundancies, transfers of undertakings and insolvency were adopted using legal bases on health and safety at work, and completing the internal market.
  3. Since the 1997 Treaty of Amsterdam, the primary legal basis for adopting such employment legislation became social policy.
  4. The Lisbon Treaty 2007 incorporated the Charter of Fundamental Rights into EU primary law, and a number of the Charter’s provisions (which include human dignity, basic freedoms, equality, solidarity, citizens’ rights and justice) are relevant to UK employment law.

EU employment law covers a range of issues, including parental leave, agency workers, health and safety at work, discrimination and equality.

Powers to legislate for ‘social protection’ have been provided, but not used as of yet.

EU employment legislation is particularly controversial since there are disagreements as to whether employment law should be a competence of the EU.

On the one hand, some argue that employment law, along with other social policy, is outside the scope of the internal economic market which the EEC was formed to create (and to which Britain signed up in 1973).

On the other hand, it could be argued that setting requirements for labour and employment law creates a framework, and a level-playing field, for the internal market.

Some of the EU directives and employment law instruments include:

  • the Working Time Directive, restricting night work, requiring regular rest breaks and providing for minimum annual leave;
  • the Temporary Agency Workers Directive, giving agency workers the same basic working and employment conditions as directly-recruited workers after a specific period;
  • the Acquired Rights Directive, providing (through TUPE) that employees keep the same terms and conditions of employment after a business sale or takeover;
  • the Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000;
  • the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002;
  • the Pregnant Workers’ Directive;
  • the Parental Leave Directive;
  • the Health and Safety of Atypical Workers Directive;
  • the Health and Safety Framework Directive;
  • the Directive on Minimum Safety and Health Requirements;
  • the Directive on Collective Redundancies; and,
  • the Directive on Informing and Consulting Employees.

The impact of the EU legislation on the UK is a highly complex and controversial subject touching on issues of culture, proportionality and competence, and EU employment law is no exception.

UK businesses are subjected to various requirements as a result of EU legislation. In respect of these requirements, one person’s important guarantee for employees’ rights is another person’s ‘red tape’. There are also historical cultural differences between continental Europe and the UK, with the former traditionally favouring collective agreements and the latter preferring more individualised relationships between employer and employee.

Disputes abound as to whether these requirements have had economic benefits by harmonising the internal market, or if these requirements have had a ‘chilling effect’ on free trade and in particular have strangulated smaller and medium sized-businesses (SMEs).

Some would also argue that the UK would have introduced such measures regardless of EU involvement, and point out that Britain has passed laws which go further than strictly required by directives from Brussels.

Ultimately, since there are no conclusive figures one way or the other, on which side of the fence you come down is your decision and yours alone, but it is worth considering in full all of the arguments on either side before deciding which way to cast your vote.

Of course, until June 23, you are free to procrastinate to your heart’s content. Just like a certain fictitious Prince of Denmark.

Of course… if the Russians get involved in the debate… it may be closer to ‘The Winters Tale’… Brexit pursued by a Bear….

For more information on these or any other employment law issues, email employment law solicitor Will De Fazio-Saunders at , or call his direct line on .

For further reading, see our section on Business Law.

[1] Apologies, Mr Shakespeare…