Brexit: Employment Law

17 October 2016

17 October 2016

The House of Commons Library has published an interesting briefing paper which explains how UK employment law works in relation to EU employment law and what the effects of Brexit will be.

A substantial component of UK employment law is grounded in EU law. EU employment law where it exists provides a minimum standard below which domestic employment law must not fall.

In some cases EU law has entrenched, at an international level, provisions that already existed in domestic law; for example, race discrimination and certain maternity rights. In other cases, new categories of employment rights have been transposed into domestic law to comply with emerging EU obligations. These new rights were often resisted by the UK government during EU negotiations; for example, agency workers’ rights and limitations on working time.

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. In consequence, a post-Brexit government could seek to amend or remove any of these.

The precise mechanism by which this could be achieved would vary depending on the right in question:

  • some rights are enshrined in primary legislation: these are alterable only by primary legislation (e.g. equality rights under the Equality Act 2010);
  • some EU-derived rights are located in secondary legislation, and are therefore susceptible to revocation by secondary legislation (e.g. agency worker and working time rights);
  • some EU rights have direct effect, meaning that individuals can rely directly on EU law (for example the right to equal pay contained in the Treaty2) – these rights would automatically cease to apply upon exit from the EU, absent any domestic legislation saving them, or new international obligation to maintain them.

The main point to note is that EU-derived employment rights featuring in primary legislation would be relatively insulated from the effects of leaving the EU, although would be newly susceptible to the possibility of change. Greater uncertainty surrounds the implications of Brexit for secondary legislation, in which much employment law is contained.

There is a useful table at the end of the briefing paper which lists EU employment rights together with their domestic implementing legislation.

PM guarantees current workers’ legal rights

In her speech to the Conservative Party conference during October 2016, the Prime Minister committed the Government to preserving EU-derived employment rights:

“The final thing I want to say about the process of withdrawal is the most important. And that is that we will soon put before Parliament a Great Repeal Bill, which will remove from the statute book – once and for all – the European Communities Act.

This historic Bill – which will be included in the next Queen’s Speech – will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain, will no longer apply from the date upon which we formally leave the European Union. And its effect will be clear. Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end.

As we repeal the European Communities Act, we will convert the ‘acquis’ – that is, the body of existing EU law – into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses. But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate.

And let me be absolutely clear: existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.”