Some 35 IHRF members got together to enjoy (I think that is the right word!) a Brexit Breakfast Briefing, with a spot of lunch thrown in at the end as well.
The event was not so much one to debate the merits of otherwise of holding a referendum over EU membership or indeed the outcome of that referendum, although it would be fair to say that some views did emerge as the morning progressed!
The purpose of the session was actually to cover off:
1. The Brexit timeline.
2. The potential implications of Brexit on the employment law scene.
3. What we as HR professionals need to do to ensure continuity during uncertain times.
So, what were the key takeaways?
THERE IS STILL A LONG WAY, AND TIME, TO GO. SO KEEP CALM AND CARRY ON.
Leaving the EU is conditional upon the UK parliament repealing the European Communities Act 1972, and the UK government invoking Article 50, and from that point on it's a 2-year process.
Mr. Juncker, despite his fervent desire to do so, is not in a position to invoke Article 50 on behalf of the EU. Only the member state (the UK, in this instance) can trigger the process.
Along the way there are a shed-load of unknowns to work through, including (but not limited to):
- The shape and effectiveness of the new government.
- The prospect of a snap general election.
- Whether MPs (most of who are Remainers) will repeal the European Communities Act.
- What shape any trade deals will take. The Norwegian model? Or how about the Swiss one? Oh, and don't leave Canada out of the equation either...
- Have we actually seen the last of Nigel Farage??
Given all the unknowns, the "Dad's Army Law" (DON'T PANIC!) applies. Until things become more concrete, it's business as usual... Until we are formally out of the EU, the UK will remain subject to EU law and the decisions of the ECJ.
IMPACT DURING THE BREXIT NEGOTIATION PERIOD
Key points:
- No change to employment law.
- Where HQ changes, relocations, job losses etc. are on the cards, then the usual rules and protections apply. Be aware of the potential for nationality discrimination in selecting non-UK workers for redundancy, or not selecting UK workers for overseas opportunities...
WHILST THE POST-BREXIT LANDSCAPE IS A BIT FUZZY, WE CAN ANTICIPATE SOME THINGS RE EMPLOYMENT LAW...
Whilst the future shape of EU-derived UK employment law will ultimately depend on the deal struck with the EU, there are unlikely to be major changes given so much EU employment law is incorporated in to UK law and social policy.
Examples covered off:
- Immigration: see below.
- Working time: largely unchanged, although there may be increased flexibility on working hours, and changes to holiday pay entitlements.
- TUPE: unlikely to disappear, but there could be a relaxation in the information and consultation requirements, increased scope to change Ts and Cs, and a reduction in the protective award.
- Redundancy consultation: will remain, but possible changes could include an increased threshold to trigger collective consultation and reduced sanctions.
- Worker status: more flexibility around definition and rights.
- Agency Worker regs: given the unpopularity of this, it may get repealed.
- Discrimination legislation: possible changes with qualifying periods to bring a claim, and introducing a cap on compensation.
- Financial services regulations: a removal of the restrictions on remuneration?
- Pensions: no immediate impact (apart from market volatility impacting funds!).
Immigration is an obvious area of concern given most employers rely on varying degrees on migrant labour. Main points:
- No immediate changes. EU nationals continue to have the right to freedom of movement.
- Future immigration policy is dependent on the deal struck with the EU. Options include having EU citizens treated the same as other migrants from outside the EU, or adopting an Australian-style points based system, or no change as part of a Norwegian-style free trade agreement with the EU.
- The other consideration is whether there may be an "amnesty" on EU employees working in the UK at the point of Brexit.
All the above has got to be seen in the context of other issues relating to the UK extracting itself from the EU being of a higher priority - e.g. trade deals. Employment law is probably quite low down the pecking order.
PRACTICALLY SPEAKING, WHAT CAN WE DO?
Good question, given not a lot is crystal clear yet.
Think about the following:
- Your engagement strategy with your workforce during these uncertain times. See below.
- Auditing your workforce. Specifically the EU nationals you have, and what roles they are doing. Anticipate whether they will be wanting to stay or leave, and work through any contingency plans from an org perspective.
- Review employees you have on secondment, and any visa implications which may arise in the event of any changes.
- Remember, EU citizens with over 5 years in the UK will have indefinite leave to remain.
- Show leadership, and keep things in perspective.
ITS GOOD TO TALK...
There was a discussion about how employers maintain engagement and motivation during a prolonged period of uncertainty. The key themes to emerge were:
- Good communication starts from the top.
- Be clear on the objective of any communications. Show leadership, address concerns, re-connect people, reinforce "business as usual", etc.
- Equip line managers to deal with queries.
- Make any messaging apolitical (i.e. don't take "Remain" or "Leave" sides).
- Make any comms inclusive of both UK and international workforces.
- Provide a platform for open dialog.
- Be watchful for any harassment and discrimination, and remind employees of the ned for dignity at work.
Perspective is key. Nothing has happened yet, and there is a long way to go. The UK is a major economy and a huge market, so there are trade deals to be had. And in terms of companies moving staff to Frankfurt, Paris, etc. then it is worth remembering the UK employment law scene is more benign than in most other EU countries.
AND FINALLY...
Why does Britain like tea so much? Because tea leaves...
A huge thanks to Adam Hartley from DLA Piper for stumping up the venue and making the sandwiches. Oh, and for presenting most of the content.
And a huge thanks to all of you who braved the sweltering conditions (it's not often you can say that!!) to participate in the event.
"This one has got legs", so as things do become a bit clearer over the coming months I am sure a follow-up will be arranged. Watch this space.
Adieu, as they say over the Channel. See EU later.
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