As reported on the blog last year, the result of the EU referendum in the UK on 23 June 2016 was that the UK should leave the EU. Since then, formal notice of withdrawal was served on 29 March 2017 which means that the UK’s exit from the EU will take place once agreement is reached but, in any event, by 29 March 2019 (unless there is agreement for an extension of the negotiation period). This post looks at the latest on what Brexit will mean for UK employment law.

Background

Key parts of UK employment law are derived from EU law, which provides minimum standards for domestic employment law.

Some EU law has been implemented in the UK by way of primary legislation, for example, the Equality Act 2010 which prohibits discrimination on a number of protected grounds such as race, sex, age, disability, religion and belief and sexual orientation. These rights can only be changed by primary legislation and would not fall away when the UK exits the EU.

Other EU law, such as the law on agency workers’ rights and working time, has been implemented in the UK by way of secondary legislation. Following withdrawal from the EU, these rights would fall away if no saving provisions are put in place.

The Government’s White Paper

After serving notice of withdrawal from the EU on 29 March, the UK Government published its White Paper on how it would legislate for that withdrawal by way of the Great Repeal Bill, which was introduced to Parliament for its first reading on 13 July 2017 under its new name, the European Union (Withdrawal) Bill.

In its White Paper the Government confirms that the Bill will do three main things:

  • First, it will repeal the European Communities Act 1972 and return power to UK institutions.
  • Second, it will convert EU law as it stands at the point of exit into UK law – (this will allow businesses to continue operating, knowing that the rules won’t change significantly overnight).
  • Finally, the Bill will create powers to make secondary legislation to enable any necessary corrections to be made to UK laws which would not otherwise make sense after Brexit, and to enable UK laws to reflect the terms of any withdrawal agreement.

Workers’ rights and equalities

So what will this mean for employment law?

Until the point of exit, (which is likely to be at the end of March 2019), the UK remains a full member of the EU, and therefore all rights and obligations of EU membership remain in full force. This means that EU law will continue to be implemented and applied until then.

As mentioned above, some EU employment law has been implemented in the UK by primary legislation which will not fall away on exit from the EU. However, other EU law, which has been implemented by way of secondary legislation, would fall away on repeal of the European Communities Act, unless saved by the provisions of the Bill. The provisions of the Bill as drafted do just this.

The Bill will convert all existing EU law into domestic law, so that workers’ rights which are enjoyed under EU law will continue to be available in the UK after Brexit.

Employment protection rights will be further strengthened by the Bill’s incorporation of the case law of the Court of Justice of the European Union (CJEU), which means that where workers’ rights have been extended by judgements of the CJEU, (such as those on the calculation of holiday pay), these rights will continue to be protected in the UK.

The Bill provides that historic European case law be given the same binding status in the UK courts as decisions of the UK Supreme Court. This means that existing EU case law will be departed from in only exceptional circumstances, although Parliament may of course change the law, and therefore overturn case law, where it decides it is right to do so.

The White Paper reminds us that in a number of areas (such as the right to statutory maternity leave) UK employment law already goes further than the minimum standards set out in EU legislation, and the Government intends to continue to protect and enhance the rights people have at work.

The Bill is unlikely to receive its second reading in Parliament before September and whether it remains as currently drafted by the time it is finalised will of course depend on its progress through Parliament. However, it is unlikely that its key provisions will change significantly.

Summary 

In summary, so far as workers’ employment rights are concerned, no imminent changes are planned by the UK Government. All EU-derived laws which apply at the point of exit from the EU will be saved by whatever means necessary.

However, in the longer term, as is the case with all UK employment law, EU-derived employment law may be amended or repealed where Parliament considers it appropriate to do so.

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