What does Brexit mean for Employment Law?

Author: Douglas-Jones Mercer.

Date: November 22nd 2018

Many aspects of UK employment law are either outside of the scope of the EU or are in excess of EU requirements including minimum wage legislation, unfair dismissal rights and certain holiday and parental leave rights.

Where there are questions relating to the interpretation of preserved EU-derived law, the Government has confirmed that UK Courts must use case law of Court of Justice of the European Union as it exists on the day the UK leaves the EU.

As of 12 July 2018, the Government confirmed their intention that no employment laws which are based on EU legislation will be repealed post-Brexit. This was confirmed in the White Paper ‘The Future Relationship between the United Kingdom and the European Union’.

Whilst this is still to be solidified in the UK’s deal with the EU, it means that employers are unlikely to face the need to revise working practices as we know them. For example, it is unlikely that rules around redundancy consultations will be relaxed and benefits such as the increased annual leave entitlement under the Working Time Regulations are unlikely to be diminished as they have been brought under UK legislation.

However, it is important for employers to be looking ahead to ensure that they do not face difficulties later down the line should the Government’s stance begin to alter.

Whilst it should be noted that until March 2019, and likely through the transitional period to 31 December 2020, the UK will remain subject to applicable EU and domestic laws, there are particular areas of employment-related risk in relation to Brexit which employers should consider seriously when planning ahead.

Using free movement of workers as an example, it is more or less assumed that the UK’s immigration regime will change post Brexit.

Both the UK and EU have stated that current employment protections offered to workers under EU legislation can be assured post-Brexit by way of a non-regression clause. However, the Institute for Public Policy Research in its report ‘A Level Playing Field for Workers’ argues that regulation of such a clause would be left to domestic authorities, and not necessarily account for any future protections brought in by the EU.

The Institute suggests the best method of protecting both UK and EU workers’ rights would be via a “common rulebook” approach. They suggest listing all relevant EU employment directives in the UK-EU agreement. The rulebook would be updated, ensuring that any new EU employment legislation was brought into UK law.

That being said, the report recognises that such an approach would only work in the case where the relationship between the UK and EU remains highly integrated. It is therefore difficult to ascertain the workability of such an approach whilst negotiations are still very much ongoing.

What is clear however, is that the discussions are very much dedicated to protecting rights of the employee post-Brexit.

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