Brexit, Employment, and the Law
Print Issue: January 2017
The European Union has historically been a driver for the advancement of nondiscrimination and equality employment legislation. The United Kingdom’s first-ever statutory prohibitions of discrimination based on sexual orientation, religion, and age were established in 2000 to comply with the EU Employment Equality Directive. But now that Britain doesn’t technically need to comply with EU employment requirements, what will happen to the current employment legislation?
Human resources directors don’t have reason to panic quite yet. The United Kingdom has just started the withdrawal process, and it has two years to negotiate the terms of the exit. During that time, the United Kingdom will still be a part of the European Union’s free trade agreement and be bound by all existing laws. Once the separation is complete, EU-driven employment legislation will remain in effect because the majority of it was passed domestically. It will be up to parliament to determine whether to repeal or change current employment legislation. However, if Britain does want to continue with the free trade agreement, the European Union may require that the United Kingdom comply with its employment law.
Attorneys with law firm Jones Day note that laws more likely to be repealed or amended after Britain’s exit include overly bureaucratic legislation—EU-enforced agency worker regulations and the required European Works Council, which won’t be relevant once the United Kingdom leaves the European Union. Other controversial legislation includes whether vacation leave is accrued while employees are sick, as well as how vacation pay is calculated.
However, U.K. employers may be facing more complaints of discrimination and workplace harassment soon. Britain currently abides by the European Union’s free trade and travel agreement, which allows EU nationals to freely live and work in any member country. But U.K. employers know that these rights are unlikely to extend after the withdrawal is complete, bringing up a hiring concern: why hire EU nationals if they may not be able to work in the United Kingdom in two years?
U.K. employers can refuse employment to anyone who does not have the right to work in the country, but refusing to hire someone because they may not be able to work in the United Kingdom in the future is almost certainly unlawful, according to CIPD, a U.K.-based HR professional body. Most employers know that this type of blanket hiring policy is likely to bring them trouble, CIPD’s website notes, and instead a more likely approach will be to require a potential employee to prove that he or she has indefinite rights to remain and work in the United Kingdom. However, this is grounds for an indirect discrimination lawsuit.
Instead, CIPD recommends that employers make employment contracts conditional on maintaining the right to work in the United Kingdom. This conditional agreement should be included in all employment contracts to avoid potential discrimination issues. “Although this will not solve the problem of employees’ immigration status changing due to Brexit, it will help with terminating the employee’s employment if that proves necessary,” CIPD notes.
A more intractable problem facing U.K. employers is discrimination against Muslim women, according to a new report. While 69 percent of all working-age women are employed, just 35 percent of Muslim women have jobs, according to Employment Opportunities for Muslims in the UK, a report issued by the parliamentary Women and Equalities Committee in August.
Muslim women face a “triple penalty” when trying to find jobs: their race, their gender, and their religion, the report notes. A National Centre for Social Research for the Department for Work and Pensions study last year revealed that a job applicant who appeared on paper to be white would receive a call back after applying to nine jobs, while minority candidates with the same qualifications had to send 16 applications before receiving a response. To address the issue, former Prime Minister David Cameron passed legislation requiring that the government use name-blind recruitment for all positions below a senior level. Several large private sector recruiters adopted the practice as well, but the practice needs to be countrywide, the report recommends.
“To be fully effective this should form part of a sustained initiative which profiles those employers which have successfully implemented the policy in order to incentivize others to follow suit,” the report notes “The government should monitor uptake and legislate if progress is not made within this parliament.”
Forty-one percent of Muslim women are unemployed and not seeking work, compared with 21.8 percent of the total population. However, this statistic should not discount the struggles Muslim women face when trying to find employment, says Maria Miller, the chairwoman of the committee that produced the report.
“The impact of Islamophobia on Muslim women should not be underestimated,” the report explains. “They are 71 percent more likely than white Christian women to be unemployed, even when they have the same educational level and language skills.”
The report lists a number of recommendations to help even out the path to employment, including more specific antidiscrimination legislation, professional mentoring programs within Muslim communities, and more generalized language and skills education. However, Miller notes that an unexpected find in the study was that the United Kingdom’s countering violent extremism (CVE) programs seemed to be contributing to discrimination against Muslim women.
Prevent, Britain’s original antiradicalization program, was implemented after 9/11. In 2015, new legislation was passed that requires public sector workers to report signs of extremism. The program has been decried by Muslim and civil rights groups for discriminating against religious minorities in Britain. It is widely known that Muslims are suspicious of the program, especially after a number of high-profile incidents in which children were interrogated by officials for alleged extremist views. Furthering concerns of discrimination is a National Police Chiefs Council report, which found that last year, at least 90 percent of reports of alleged extremist behavior were made by non-Muslims.
“The government is making attempts to deal with the problems that Muslim people face in getting work, but our analysis would be that their attempts are being undermined by this clear link that Muslim people are making between government policy on employment and government policy on counterextremism,” Miller told The Guardian.