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UK workers' rights post-Brexit

BY Kirstie Beattie
Employment Law & HR

UK workers’ rights post-Brexit

As of 1st January 2021, the UK has officially left the European Union. Leaving the EU has meant that the UK is no longer under the jurisdiction of the European Court of Justice, nor is it technically bound by EU Directives and Regulations, albeit these are largely implemented in our domestic legislation and are thereby retained. In theory, however, the UK has acquired parliamentary sovereignty which gives it much greater scope to vary UK workers’ rights. There has been much commentary over the types of change we may expect to see in future, specifically in relation to working time, some of which are summarised below.

No more 48-hour working week?

Currently under the Working Time Regulations (WTR) which implement the EU Working Time Directive (WTD), UK workers’ working week is capped at a maximum of 48 hours. This is primarily a health and safety provision to protect against work-related exhaustion and the side effects which follow. There is a suggestion that government may abolish this cap. Whilst headline grabbing and easily criticised by government’s opposition and those in favour of workers’ rights, the practical impact of this will be limited as the WTR contains a derogation from the WTD whereby workers can voluntarily opt out of the 48-hour limit in any event.


Changes to rest breaks?

As it stands, workers enjoy the right to a rest break of 20 minutes if working over six hours in a day. It is rumoured that this may be subject to change, although the specifics are unknown. Are we likely to see vastly improved right to rest breaks? Probably not, although a significantly reduced entitlement is unlikely to win favour with voters and this is something which government must bear in mind.


Changes to holiday pay calculations?

Finally, there is no escaping the topic of holiday pay. Just as we’ve all got to grips with the “normal remuneration” rules in relation to holiday pay and commission, overtime and other variable elements of pay, this may be turned on its head. It is plausible and perhaps probable that the UK government will opt for the vastly simpler “basic pay only” model which, whilst welcome for employers, would significantly disadvantage workers with variable pay.


In response to the above, Business Secretary Kwasi Kwarteng initially confirmed that there would be no dilution of workers’ rights post-Brexit. On reflection he confirmed that EU-derived rights were under review but wouldn’t be disposed of in a bonfire-like fashion. It’s reasonably safe to say – although who knows – that the WTR won’t be scrapped; watered down perhaps but not torched altogether. We hotly await the Employment Bill which will provide some much needed certainty in this regard.

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