This is the final article of a three-part series, the first and second articles can be found here - 'What threat does Brexit pose to workers' employment rights?' and 'Will workers' rights be diluted post Brexit?'
Many City bankers will be worried about their employers moving large parts of their operations to France, Germany, Ireland or another EU jurisdiction in the coming months and years as a result of Brexit. The fear is that in the event of a "hard" Brexit, the UK will lose important passporting rights. Credit Suisse, UBS and HSBC have already made loud noises about relocating some of their UK businesses to the EU if the UK fails to retain these rights.
The EU has warned UK banks that setting up shell organisations in the EU in an attempt to get round EU regulations will not succeed. So, it seems inevitable that there will be job losses if some UK operations are moved to the EU post-Brexit. At this stage, nobody knows precisely how many of these would be in the City. Given that the finance and banking industry is the biggest net tax contributor to the UK Treasury though, it would be surprising if the government does not do everything it can to protect it as part of any Brexit terms.
Until a deal between the UK and the EU is struck, there will continue to be uncertainty in the banking industry. This is likely to cause the big banks to monitor pay carefully.
That said, in the longer-term, once a deal has been completed, the UK banks might have more freedom than they do now to reward staff. Total pay could increase after Brexit.
As a member state of the EU, the UK must comply with strict banking remuneration rules that impose restrictions on bankers' bonus pay. After the financial crisis of 2008, the EU introduced a new package of reforms affecting banks and investment firms, known as CRD IV. CRD IV introduced measures to strengthen corporate governance in the finance sector, including new leverage ratios and liquidity requirements as well as new sanctions for banks that broke the rules. The CRD IV reforms, which have been applicable to EU member states since 1 January 2014, also brought in a cap on bankers' bonus pay.
After investigating the causes of the 2008 crisis, the EU decided that the banks' remuneration policies were flawed because they encouraged bankers to take risks in return for potentially huge bonus payments. The way to restrain this risk-taking culture, the EU Commission reflected, was to require firms to have in place remuneration policies that did not reward risk taking. So, legislation was introduced that required the bonus pay of certain categories of bankers to be capped at 100% of their fixed pay or 200% of their fixed pay if shareholders' approval is obtained.
Whilst the EU thought this a sensible solution to promote responsibility in the banking system, the UK took the opposite view. The cap on bonus pay is unpopular with UK banks and the UK government, who opposed the EU reforms.
George Osborne, Chancellor of the Exchequer in 2014, threatened to bring legal proceedings against the EU over the reforms and only withdrew following an adverse opinion from the ECJ Advocate General. Osborne's view was that the introduction of the cap was a bad idea. It would lead to an increase in bankers' fixed pay, which is normally guaranteed even in circumstances where the bank and banker perform badly. Variable bonus pay, on the other hand, is normally subject to claw back arrangements and can be withheld by the banks if a banker commits wrongdoing or performs badly.
Osborne felt a bonus cap would lend itself to banks paying bankers higher fixed salaries, regardless of their performance levels. It would also make it more difficult for banks to impose sanctions on bankers who performed badly.
Osborne wrote to Mark Carney, Governor of the Bank of England, to say the cap would "undermine responsibility in the banking system... by pushing salaries up, making it more difficult to claw back bankers' bonuses when things go wrong, making it more difficult to ensure that the banks and bankers pay when there are mistakes... We face the prospect in Europe of an increasing proportion of bankers' remuneration being paid as fixed compensation, not subject to claw back and effectively guaranteed even if the bank is facing financial distress." Despite the concerns of the government and the big banks, UK banks have had to comply with the bonus cap rules since January 2014.
If and how the CRD IV regime will apply to the UK banking industry post-Brexit will depend on the terms of the deal the UK strikes with the EU. If, following Brexit, the CRD IV rules are discontinued it is possible that the government could give banks free reign to pay unlimited bonuses. If the City faces more competition post-Brexit, one way the banks might seek to retain and attract key talent is to offer huge bonus payments. There is no similar cap on the bonus pay of bankers operating in the USA or the Far East and some argue that the UK should discontinue the cap on bonus pay post-Brexit to gain a competitive advantage over the EU and keep pace with New York, Singapore and Hong Kong. Whilst some will worry that such remuneration policies might lead to a return to the culture of pre-2008 excessive risk-taking, others will feel that if pay policies are drafted properly, UK bankers could be encouraged to operate boldly in a more dynamic and daring banking environment than its counterpart across the channel.
Joseph Lappin is a Solicitor in our Employment team. He assists individuals and employers with a range of employment law and people issues. Joseph has experience of advising on the conduct of grievance and disciplinary procedures and regularly supports clients in bringing and defending claims in the Employment Tribunal, including unfair dismissal, whistleblowing and discrimination claims.
Joseph joined Stewarts Law in February 2017. Prior to qualifying as a solicitor, Joseph completed a graduate scheme in Human Resources at KPMG. He then trained at Penningtons Manches LLP and qualified in 2014 before returning to KPMG as a solicitor in the employment law team. Joseph read history at the University of Bristol before completing his legal training at the University of Law in London.