Short Term:

Some commentators have suggested large scale repeal of EU legislation following Brexit.  In terms of employment law, realistically it is doubtful that the UK government would want to increase the burden on employers and create more confusion in the short term by making significant changes to the basic structure of the current legislative framework.

Even after the exit process has ultimately been completed and the UK has left the EU (and assuming no other restrictions imposed by another free trade agreement), European law will continue to apply in one way or another. This is because the process of disentangling it from UK law will take some time.

The Prime Minister has said she will implement “The Great Repeal Bill”.  This will enable a gradual, piece-by-piece approach with legislation being repealed and modified.

Medium Term:

Following piecemeal repeal, it is likely that the Government, freed from European constraints, would be tempted to tinker with certain aspects of current employment regulation although the Prime Minister has promised to preserve and protect workers’ rights.

In the medium term the Government may start to tweak legislation it to make it more “business friendly”, that said It should be remembered that following our exit from the EU, the UK will still seek and need to maintain strong trading relations with Europe therefore it is expected that radical changes are unlikely.

Longer Term:

It is likely that in time the UK government may start to remove or change some aspects of existing UK employment regulation which have proved unpopular with UK business and where the removal of such protection is unlikely to be viewed as an erosion of the fundamental rights and freedoms of employees and workers (by the EU, overseas and within the UK itself).

A few areas likely to see change:

Agency workers

The most likely contender for complete revocation is the Agency Workers Regulations 2010. These regulations are unwieldy, unpopular with business and not noticeably popular with workers either.

Discrimination

It is unlikely that we will see wholesale removal of discrimination legislation.  No employer can realistically argue that they should be free to discriminate against staff. It is possible that, following Brexit, a cap could be imposed on compensation for unlawful discrimination.  It is currently uncapped and is viewed by most businesses as very onerous.

Transfer of Undertakings

TUPE can attract a bad press, but the principle that employees should transfer when a business changes hands or is contracted out is often useful for business and is incorporated and priced into many commercial outsourcing agreements. For this reason, although there may be some businesses that would like to get rid of TUPE, it seems more likely that the Government would make some small changes to make it more business friendly, such as permitting the harmonisation of terms of employment following a TUPE transfer which is currently unlawful.

Holidays and Working Time

Various European Court of Justice (ECJ) decisions on holiday pay are unpopular with UK businesses - for example, the right to keep accruing holiday while on sick leave and the fact that holiday pay should be based on all aspects of remuneration, not just basic pay. The Government might choose to tweak these laws to make them more commercially acceptable.

Legal precedent

If we retain some EU law following Brexit, the UK courts are likely to continue to regard judgments of the ECJ on those laws as persuasive, even if not binding. In any event, pre-Brexit UK court decisions incorporating ECJ reasoning would remain binding on lower courts and tribunals. In October 2016 the Prime Minister stated very clearly that "the judges interpreting our laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end". This suggests that in the event that ECJ judgments develop employment law principles (and potentially expand employment rights) beyond the principles established in European case law at the point of Brexit then the English courts will not be bound to follow such decisions when interpreting our domestic legislation.