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Brexit: policies and procedures

By October 14, 2019October 21st, 2019Case Review, Current Affairs, Legal Update
Risk Management | HR Solutions

Adapting policies and procedures post-Brexit

With regards to your HR practices, be aware that you may be obliged to amend your policies and procedures if the laws change. We normally get plenty of warning about legal changes and HR Solutions keep clients informed of any updates on the horizon.

Changes to contractual or implied terms can only be made safely:

  • If there is an implied right
  • With the individual’s agreement
  • Following full and fair formal consultation (the employer should have a legitimate economical, technological or organisational business reason to warrant the change).

Legal changes post-Brexit which are more favourable for the employee:

The implied right comes about when there are new legal obligations imposed on an employer, which are more favourable than what the workers currently receive. Put simply, an employer has to at least meet the minimum requirements of the law. Any changes made to employment law post-Brexit will have to be implemented when the law is enforced. There is no obligation to seek formal agreement, nor to go into consultation with staff.

Consider how (or if!) it will be appropriate to communicate the changes e.g. a letter attached to payslips, companywide e-mail, intranet announcement etc. If the change impacts on contractual wording, a variation to contract letter should be issued to those affected.

Legal changes post-Brexit which are less favourable for the employee:

Any changes made to the law which perhaps favour the employer, but are less favourable to the employee, then there is no implied right. Therefore, existing terms which are more favourable than the (hypothetical) new law will remain in effect.

Employers are not automatically entitled to enforce less favourable terms even if this would bring them in line with the law. To do so, employers must seek the individual employee’s agreement or (if 20 or more employees are affected) follow full and fair formal consultation.


References to EU law (or operation within the EU) in contracts, policies and handbooks

References to the noun ‘EU’ will become outdated where this is intended to include the UK.

We would advise you to review contractual documentation (written statements, offer letters, contracts, restrictive covenants, settlement agreements etc) and amend any reference to the ‘EU’ accordingly.

Similalry, any references to EU legisaltion may technically no longer be applicable to your UK operations (subject to a Withdrawal Agreement). In this case, we would advise you to replace any such references with the UK equivalent legislation.

Please be aware that any international contracts may become unstable where there are references to EU based laws that may currently be relied upon by both the UK and the EU, but post-Brexit are liable to change for one jurisdiction during the contract.

If you have a TUPE situation (transfers of undertakings), we would advise you to review commercial contracts for references to EU based legislation that could be repealed or altered during the length of the contract and consider amendments accordingly.

Further Brexit and HR Guidance

Visit our Brexit Business Preparation website page for more suggestions on how an organisation as a whole may identify the potential impact that Brexit could have on its operation; as well as get practical HR and employment legislation guidance on how businesses can get ready for Brexit.

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