InsightsInsight - Employment & HR - POSTED: October 28 2016
Implications of BREXIT on employment law: Are we any further on?
On 12 October 2016, the House of Commons published a paper on what they believe the implications of Brexit may be for employment law.
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The Effect of Brexit on Legislation and Case law
This paper begins by saying the following:
‘Subject to the provisions of the EU withdrawal arrangements or a subsequent trade agreement, withdrawal from the EU would mean that UK employment rights currently guaranteed by EU law would no longer be so guaranteed.’
This statement is most prevalent for laws that are implemented through secondary legislation under the power of the European Communities Act 1972.
This includes the Transfer of Undertakings Regulations (TUPE) for example. Through the much talked about Great Repeal Bill, the government may choose to save the EU rights contained in secondary legislation. It is ultimately to be seen how the government will do this in practice. If as expected, the government legislates to keep existing law derived from the EU, the major question will be how then do we interpret newly acquired UK laws, which had previously been interpreted under EU and not UK principles?
Many of the laws we have in place which relate to the workplace have developed through case law as opposed to legislation. The European Court of Justice has been called upon many a time to interpret the laws interpreted by our courts and we are currently obliged to follow their decisions. When the UK leaves the EU, we may not have to follow these decisions; however, even if we do not, they are likely to be considered persuasive. We have seen recently in the appeal of the case of Lock v British Gas Trading Ltd that further details on calculating holiday pay have not been provided which has left an area of uncertainty. This decision may be one our parliament would choose not to follow.
Theresa May has stated at the Conservative Party Conference that she wishes to preserve EU-derived employment rights and provide maximum certainty to workers and businesses by converting EU law into British law. Although there is the potential for the law to change, it appears unlikely that it will do so, at least with the current government. The main problem will be how we interpret EU law outside of the EU.
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