The 5 key potential employment impacts of Brexit are outlined below.
- Potential for differing employment law regimes post-Brexit: At present, the jurisdictions of Ireland and England and Wales are subject to the entire suite of European employment laws (although the details of implementation varies in each jurisdiction). The employment tribunals and courts of both jurisdictions are likewise bound by precedents set in the European Court on employment matters. It remains to be seen what the UK will do on the application of European law, generally, post-Brexit. Whatever is done, it is likely to apply to employment law.
- Impact on employers: On a day-to-day basis, whether there are differences in employment law and practice between the jurisdictions is likely to have little or no impact on Irish employers. If changes lead to differences in employees’ rights between the jurisdictions then that would affect an employer’s ability to harmonise employment terms and conditions where the employer employs people in both jurisdictions. That proposition holds true today, but its effect may be amplified after Brexit. If employment law regimes differ in respect of the terms and conditions and tax treatment applicable within each jurisdiction, that may weigh in the decision-making process of an employer when choosing whether to locate in the EU or the UK. In that scenario, one jurisdiction may secure a competitive advantage over the other in its bid to attract employment.
- Impact on employees: Issues may arise post-Brexit in relation to UK nationals living and working in EU countries, including Ireland. Equally, the rights of EU nationals to work in the post-Brexit UK may be affected. Given the proximity of the two jurisdictions and in particular the geographic proximity of Ireland and Northern Ireland, the resolution of this issue may have a particular impact on employers and employees in border areas. For example, if Irish and UK employees were to require work permits to work in each other’s jurisdictions, an issue would arise immediately in respect of persons already employed. For practical reasons, it would be hoped that any new requirements would apply only prospectively to employees seeking, for the first time, to work in the opposite jurisdiction under the post-Brexit regime. At the very least one would hope and expect that employees already in place would be deemed eligible for work permits without having to satisfy whatever criteria may be introduced.
- Recognition of qualifications: A related issue may be the recognition, or otherwise, of professional qualifications between jurisdictions. If qualifications recognised now cease to be recognised, then that would likely create a further obstacle to the freedom of movement of employees.
- Transfer of Undertakings: The Transfer of Undertakings regime (TUPE) is one area of employment law which at present has the potential to operate cross-border between EU Member States. Under TUPE, in appropriate circumstances, employees from one Member State may be entitled to transfer their employment to an employer in another Member State following the transfer of a business or part of a business. In practice, this may not be a very common occurrence but, in a post-Brexit scenario, it is conceivable that should there be what would have constituted a relevant transfer, employees will no longer have the right to follow their employment to or from the UK. In that situation, employees may be deprived of the safeguards contained under the TUPE regulations and companies could seek to take advantage of any potential gaps. Depending on what transpires, it is possible that some sort of preventative measures may be put in place. As with all the possible implications of Brexit, we must wait and see whether Brexit changes the employment law landscape and, if so, to what extent.