Employment Laws Open for Repeal
Parliament has briefly returned from its summer recess today, with a welcome to the despatch box from the new Brexit Minister, David Davis – the Secretary of State for Exiting the European Union.
Among the many questions that were put to the new minister were questions about how European laws will be affected upon the UK’s exit from the EU. For employers, this matters greatly, as a lot of employment law, and the related case law – the interpretation of the law by the courts – currently exists solely due to the membership of the European Union.
While there were suggestions from MPs on how this might be done, the minister could only explain that his new department’s lawyers, and lawyers more widely across Whitehall, were looking into the matter, but couldn’t say how or when upon the UK’s exit from the European Union (or Brexit, which means “Brexit”, a most ambiguous term) would affect the various laws.
Brexit: impact across policy areas
The House of Commons Library recently published a “Briefing Paper, Brexit: impact across policy areas”.
While anything to do with Brexit can still only be speculation, the paper does highlight the areas of employment law that could be subject to change (weakened or repealed entirely) upon Brexit. Contrary to some simplistic suggestions from the floor of the House of Commons, the process might not always be easy, as some European laws are enshrined in primary legislation, but others are only introduced in secondary legislation, a far less formal means of introducing (or amending) legislation.
Even without any immediate changes to the legislation, there’s been a lot of speculation & debate in legal circles on the effect of Brexit on UK case law, where this has been influenced by European law. Some lawyers would (very reasonably) argue that the current case law stands, regardless of Brexit, as the final case law is made in the UK courts, not in Europe. But a counter argument is, as a minimum, if the case law was challenged, a higher court could no longer be required to uphold EU law, even if it found this persuasive, and that just leaves open litigation reopening so much of what we currently know the law says, employers would be in doubt about the law for many years to come – while lawyers would be kept extremely busy.
Employment Law & Brexit
“The only relatively clear conclusion that can be drawn at this stage is that Brexit will allow for change to the following areas of employment law, which are underpinned by EU law:
- annual leave
- agency worker rights
- part-time worker rights
- fixed-term worker rights
- health and safety obligations
- state-guaranteed payments upon an employer’s insolvency
- collective redundancy rights
- information and consultation rights
- the right to a written statement of terms and conditions
- posted worker rights
- paternity, maternity and parental leave
- protection of employment upon the transfer of a business
- anti-discrimination legislation
EU employment rights contained in primary legislation would be relatively insulated from the effect of leaving the EU, but would be newly susceptible to the possibility of change. This is because leaving the EU would not automatically repeal provisions in Acts of Parliament. Much greater uncertainty surrounds the implications of Brexit for secondary legislation, in which much employment law is contained.”
The paper highlights the areas of law that are susceptible to change – a vast collection, that could leave employers in the dark for a long time, until certainties were brought forward. Which can only mean the legal industry could be busily employed for many years to come, with employers having no certainty on what the minimum terms are they might have to consider employees are working under.