Brexit – how will it affect employment law?
A large proportion of UK employment rights stem from EU law. For example, discrimination, family-friendly rights, working time and collective redundancy consultation are all heavily influenced by EU law. EU employment law provides a minimum standard which domestic employment law must not fall below.
The UK’s withdrawal from the EU could mean that UK employment rights currently implemented through EU law are no longer guaranteed. This will largely depend on the trade agreements that are put in place in the two-year period after the UK has notified the EU of its intention to withdraw by triggering Article 50, which the Prime Minister has said will be no later than March 2017.
What is certain is that the UK will remain subject to EU law and applicable EU decisions before and during the two-year notice period and during this time there are unlikely to be any significant changes.
However, what is less clear is what will happen once Britain has formally exited the EU. The Prime Minister has announced the Great Repeal Bill will come into force on the day the UK formally leaves the EU.
This Bill will annul the 1972 European Communities Act, which is the legislation that gives EU law direct effect in the UK. Parliament will then have the freedom to depart from EU employment law and could seek to amend, repeal, keep or improve current UK employment rights.
The House of Commons Library has attempted to provide some guidance on the impact of Brexit on UK employment law and to what extent it is likely to change.
It states that ‘EU-derived employment rights featuring in primary legislation would be relatively insulated from the effects of leaving the EU, although would be newly susceptible to the possibility of change.’ So rights that are contained in primary legislation, such as equality rights under the Equality Act 2010, are not likely to be affected.
However, it states that ‘greater uncertainty surrounds the implications of Brexit for secondary legislation, in which much employment law is contained.’ So employment rights that are contained in secondary legislation, such as working time rights, are susceptible to revocation.
The briefing explains that EU rights which have direct effect, meaning that individuals can rely directly on EU law (for example the right to equal pay) would automatically cease to apply upon exit from the EU, unless any domestic legislation saves them.
The report also addresses the status of European Court of Justice (ECJ) case law. There are a number of ECJ judgements interpreting EU employment rights, which the UK courts are currently bound to follow. However, the report points out that:
‘Post-Brexit, UK courts would no longer be required to follow existing and future ECJ decisions, and may merely regard them as having persuasive force (rather than binding force). A potential consequence of that approach may be the re-litigation of controversial judgments, such as those relating to the calculation of holiday pay.’
In her speech to the Conservative Party conference during October 2016, the Prime Minister committed the Government to preserving EU-derived employment rights. The Prime Minister also gave assurance that existing workers’ legal rights will continue to be guaranteed. Theresa May said that by converting all EU law into UK law on the day of exit from the EU, will provide maximum certainty because, in the short term at least, the same laws will apply after Brexit as they did before. The Prime Minister also said that any changes to the law will be subject to full scrutiny and proper Parliamentary debate.
If you have any questions regarding the impact of Brexit on UK employment law, please contact:
Partner and Head of Employment
T. 020 7227 7410
Ben Dos Santos
T. 020 7227 6743
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.