How will employment law change after Brexit?
Some of our clients have been asking what will change after Brexit in terms of employment laws, so here are our thoughts.
In June 2018, The European Union (Withdrawal) Act 2018 (EUWA) became law, ending the supremacy of EU law after our exit from the EU. Existing EU laws will be converted into domestic law, while preserving laws already made in UK law to implement EU obligations.
Exactly how this will happen and when will depend on whether or not the draft withdrawal agreement is implemented. This agreement provides that the UK must ensure that the level of protection provided for by law, regulations and practices such as:
- fundamental rights at work
- occupational health and safety
- fair working conditions and employment standards
- information and consultation rights at company level and restructuring
are not reduced at the end of the transition period below the level provided by the common standards applicable within the EU and the UK.
If the proposed withdrawal agreement is put in place, the current position whereby the UK is subject to EU laws (whilst retaining our right to make national laws which are no less favourable) will remain until 31st December 2020. After 2020 the UK will be able to amend employment law, subject to the commitments in the UK Withdrawal Agreement. Any amends would of course also be dependent on the political complexion of future governments of the day and any trade deals agreed with the EU which may involve commitments on labour law.
If the proposed withdrawal agreement is not finalised, there will be no 21-month transition period and The European Union (Withdrawal) Act 2018 (EUWA) will apply as above with effect from 29th March 2019.
The degree to which the UK may decide to depart from EU requirements in the future will depend on the final Brexit deal – future trade deals may involve accepting some, or even all, EU employment legislation.
However, our view is that it is unlikely that there will be any immediate changes to employment law following Brexit. Firstly, many UK employment laws do not stem from EU law and so will remain unaffected – for example, Unfair Dismissal law is unlikely to alter. Secondly, most EU employment law has already been brought into effect via UK legislation (such as the Working Time Regulations, TUPE, etc) and these UK laws frequently exceed the minimum protection required by the EU (such as maternity leave and the right to 5.6 weeks’ holiday). These laws are unlikely to change because of Brexit.
Post-Brexit, UK courts and tribunals will no longer refer cases to the European Court of Justice or be obliged to follow new decisions from that court. However, it is unclear how the UK legal system will interpret existing UK case law which has stemmed from EU directives. National courts are currently required to interpret national law (so far as possible) in the light of the wording and purpose of relevant EU directives in order to achieve the result pursued by the directive. For example, the Working Time Regulations implemented the Working Time Directive, however ECJ decisions have effectively re-written parts of the Working Time Regulations in relation to holiday entitlements for workers to ensure that the Regulations comply with the Directive.
It remains to be seen how national courts will interpret UK laws based on EU Directives post-Brexit. It is likely that tribunals will continue to apply the previous decisions of higher UK courts where the decision was based on an application of the law as directed by the ECJ. However, it is unclear to what extent our national courts may still look to ECJ decisions to interpret UK laws which originated as EU Directives in the future.
We will continue to follow developments in this area and provide you with our thoughts in our monthly newsletters.
Please let us know if you have any specific issues you would like us to look into more carefully for you. Email us at firstname.lastname@example.org or call our advice line on 01494 817193 for more information.