One piece of legislation that may be impacted in particular is TUPE, the Transfer of Undertakings (Protection of Employment) Regulations 2006 – the UK’s implementation of the Acquired Rights Directive. TUPE is a statutory provision that acts as to protect employment rights when there has been a transfer of an undertaking (sale/purchase of a business’s assets) or a service provision change (insourcing/outsourcing).
The restrictive nature of TUPE and the formalities it imposes in terms of the automatic transfer principle of employees and the obligation to inform and consult can often be off putting to overseas business as they are unaccustomed to such a rigid framework.
In the event of a ‘Brexit’ it is thought, in the employment law community that TUPE will be ripe for reform and potential relaxation. It is wholly unlikely that TUPE would be repealed in its entirety given its place in the statute books for more than 30 years. The mostly likely change is to the obligation to inform and consult reducing the burden to collectively consult or restricting the imposition to larger businesses.
This seems to be the most likely approach in a post-Brexit environment, seeking to balance the needs of businesses with a well-established regime of employee protection.
A further issue that might affect the application of TUPE is the approach that employment tribunals and courts would take when interpreting and applying TUPE, whether or not the Regulations themselves remain unchanged.