Brexit- Implications for Northern Irish Employment Law

July 7, 2016

After months of intensive campaigning from both sides, the UK electorate has voted in favour of leaving the EU. This is in contrast to the position in Northern Ireland where the majority voted to remain. This article will examine the impact that the EU has had on employment law in Northern Ireland, what the immediate situation is now and what the future may hold for employment law in Northern Ireland.

The impact of the EU on employment law in Northern Ireland

Many areas of Northern Irish employment law such as anti discrimination law, TUPE, working time, and the laws governing agency workers have been heavily influenced by the EU. This is because they are based upon EU directives or case law. A directive is a legal act of the EU which requires member states to enact laws to achieve a particular result without dictating the means of doing so. This means that EU legislation creates a legislative benchmark of protection which must be met by Northern Irish law.

For example, the Working Time Regulations (Northern Ireland) 1998 (as amended) gave rights to Northern Irish employees in respect of a maximum working week of 48 hours and entitlements in terms of rest breaks and annual leave. However, although this is Northern Irish law it was made to implement Directive 93/104/EC of the EU.

As well as the legislation, another obvious impact for employers is the free movement of people. This is a fundamental principle enshrined in Article 45 of the Treaty on the Functioning of the European Union. It means that citizens of an EU member state are entitled to go to another member state and look for a job, reside and work there without the need for a work permit.

What is the situation after the referendum result?

For the meantime the UK remains a member of the European Union. In order for the UK to initiate the process of leaving the EU it will be necessary to notify the European Council of its intention to leave in accordance with Article 50 of the Lisbon Treaty. Then there would be a period of negotiation setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU. It is not clear when this process will be started and currently the indication is that the notification will not be made until David Cameron is replaced as Prime Minister.

The earliest date by which the UK could cease to be a member (without agreement of the UK and a qualifying majority of EU states) would be two years after the Article 50 notification. However, it is quite possible that the negotiations could last longer than this and it is therefore not possible to know exactly what will happen. There is also the possibility that in the meantime a further referendum would be called for or even a border poll in Scotland and/or Northern Ireland. Therefore it is important to recognize that any changes will not be immediate and are impossible to predict with accuracy.

What might the future hold for employment law in Northern Ireland?

In one sense one might argue that not much would change, at least in the short term. It is true that much of our employment law is based on EU directives and therefore by leaving the EU the laws could potentially be open to challenge. However, many of the rights mentioned above are now so deeply embedded in the culture of the workplace, or indeed have become contractual for many employees, that it is difficult to foresee the possibility of these rights being removed. However, if a future government were inclined to remove or restrict these rights it would, in theory, be able to do this without having to worry about being in breach of EU legislation. Also it may be the case that future developments in employment rights in Northern Ireland will progress more slowly than in EU member states.

Even outside of the EU the UK will still seek to maintain strong relations with Europe. This will be even more important for Northern Ireland which is the only part of the UK to share a land border with the EU. In order to maintain this relationship it will be important to be able to demonstrate that minimum employment protections exist. In fact it is possible that the UK may choose to follow a “Norwegian” arrangement by becoming a member of the EEA or enter into bilateral trade arrangements whereby it agrees to be considered as a member state for the purposes of certain pieces of EU legislation. In these cases it is possible that the EU laws will remain in place for some or all of the areas of law noted above.

Immigration control is a hot topic and was one of the key motivations for those voting to leave the EU. It may be that in the future we see an introduction of stricter controls on EU workers entering UK to work. Likewise we may see changes to the rights of UK citizens to work in the EU. However, again it may be the case that in order for UK to gain access to the single market it may need to agree to a certain level of freedom of movement.

One must also remember that there are areas of employment law which are of a domestic origin such as minimum wage and unfair dismissal. There are also areas such as the statutory minimum holiday entitlement where the protection available to employees in Northern Ireland is higher than the legislative benchmark provided for in EU law. Therefore UK’s exit from the EU should not have any bearing for Northern Irish law on these matters.

Conclusion

While the result of the referendum has been a momentous one politically and economically for UK and Northern Ireland it is difficult to see any significant changes to the current legislative framework with regards to employment law in the short term. However, as with other areas, it is impossible to predict with any degree of certainty how Northern Ireland’s employment laws may be affected by a Brexit.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.