Brexit and Employment Law

BREXIT AND EMPLOYMENT LAW

The House of Commons library has published a short briefing paper summing up some of the implications for employment law following the UK’s vote to leave the European Union in June.

The Government’s View

The paper re-produces a section from Prime Minister Theresa May’s speech to the Conservative party conference in Birmingham.

Mrs May talks about her government’s plan to introduce a “Great Repeal Bill” in next year’s Queen’s Speech. She says that this bill will “convert” the pre-existing body of EU law into British law, over which parliament will have authority, upon the day Britain formally exits the European Union.

On the subject of employment law, Mrs May told delegates that:

“existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.”

The Legal Challenges

How will the government be able to achieve this goal post Brexit? European employment law is entrenched in British law at various levels.

Primary legislation – Some rights such as those contained in the Equality Act 2010 are enshrined in primary legislation (broadly speaking an act of parliament). Such rights may only be abolished by primary legislation repealing them and so will continue to operate regardless of Brexit.

Secondary legislation – Other rights (e.g. agency workers’ rights and working time rights) are found in secondary legislation such as statutory instruments. The fate of these rights depends on the exact terms of the “Great Repeal Bill”. Unless the bill specifically converts them into primary legislation then they will continue on as pieces of secondary legislation. No longer backed up by the supremacy of EU law, it would be open to the government to repeal or amend these rights by secondary legislation. This would be far easier to do than primary legislation.

Direct effect – Rights such as article 141 of the Treaty on European Union (equal pay) have direct effect in British law without any need for parliamentary legislation. These rights will automatically lapse upon Brexit, unless any specific legislation is implemented to the contrary.

The European Court of Justice

Another tricky matter to consider is the status of ECJ jurisprudence in the UK after Brexit. There exists a large body of case law interpreting employment rights which the domestic courts have been bound to follow. Assuming no deal is struck which says otherwise, ECJ cases will merely be persuasive in the British courts after Brexit. There is scope for uncertainty with the possibility of employment law cases decided pre-Brexit being re-litigated.

How the government will approach this remains to be seen. Commentators have suggested that they may wish to introduce transitional measures to freeze the law in place while we consider how UK employment law should develop in the post-Brexit world.  

We will, of course, continue to monitor matters as events unfold and will endeavour to keep you updated. Should you have any queries in the meantime, please do not hesitate to contact a member of the WJM employment team on 0141 248 3434.