The Custodian Insurance Industry Blog

November 12, 2019

Employment Rights and Brexit – where do our rights come from and what do we need to know?

Employment Rights are something we are all aware of. Minimum wage, holiday pay, maternity and paternity leave… But where do these rights come from and will things change post Brexit?

Certain rights have been around for hundreds of years. For example, the Factory Act 1833 prohibited employment of children under 9 years old, and the Contracts of Employment Act 1963 first introduced the right to a contract of employment and notice period.

So…where do the Employment Rights we know today come from?

Employment rights today can be categorised into three types:

  1. UK based rights which have not been influenced by the EU
  2. Rights which have been brought in as a result of EU directives
  3. Rights which have involved British law being amended to meet EU requirements.

Overall, the majority of Employment Rights have been brought into effect via UK legislation.

Which rights are UK based?

An example of some of the key rights which are UK based include:

  • Unfair dismissal
  • Minimum wage
  • Statutory redundancy pay
  • Flexible working

Therefore post Brexit these are unlikely to change.

Which rights are EU based?

  • Some of the key EU based rights include:
  • Working time
  • Holidays and holiday pay
  • Parental leave
  • TUPE
  • Agency workers
  • The right to rest breaks

A lot of EU based rights have become workplace norms and very much embedded in UK employment law, so getting rid of these would be highly unlikely.

Which rights are a mix between the two?

Some rights are a mix between both EU and UK law, or UK law has extended the level of protection offered by EU law. Take a look at discrimination for example…

The UK already offered protection against sex, race, and disability discrimination but these rights were extended by the EU. Now it is also unlawful to discriminate against someone based on their religion or belief and sexual orientation.

UK law also goes further than the EU in relation to maternity rights by providing 52 weeks for maternity leave as apposed to the EU minimum of 14 weeks.

Because of this these are also unlikely to change too.

So…what is the position in regards to Brexit and employment rights now?

Currently nothing has changed…we are still yet to leave the European Union so the existing law is still relevant and still applies!

What will change when we leave the EU?

Like most answers to questions asked about the EU…we don’t know!

At this point in time it is difficult to say exactly what will happen. It also depends on the deal (or no deal) we end up with.

We could end up in an agreement where we have to accept all or some of EU Employment Legislation, or none at all.

If changes are going to be made to any legislation these will require parliamentary approval. So nothing will happen instantly and you will have time to get your head around things.

Are there any changes in the pipeline that we should be aware of?

Employer associations and business groups have highlighted some areas that might be targets for amendment…

Some of the key areas to be aware of include:

  • Discrimination – putting a cap on the amount of compensation awarded for discrimination claims
  • Holiday pay – the right for workers on long-term sick leave to carry over unused holiday into the next year
  • TUPE – the need to provide more opportunities for transferee employers
  • This is all still speculative at the moment.

So…the waiting and uncertainty continues…but at Custodian we continue to try to offer employers some certainty with our employment dispute insurance offering support for our insureds.

If you have any questions regarding your policy or anything mentioned in this article then please do not hesitate to get in contact! Just contact or call 0207 648 4343.

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