How will Brexit affect employment law?

Following the EU referendum in 2016, the UK will now leave the European Union on 31st January 2020. We explore the key concerns that surround the upcoming transition period and how Brexit will affect employment law.

What still needs to happen for Brexit to take place on 31st January 2020?

The UK is set to leave the EU on 31st January 2020, and the Withdrawal Agreement Bill will give effect to this. The Withdrawal Agreement Bill is currently awaiting royal assent and will then become law.

The European Parliament will then need to ratify the Withdrawal Agreement (this is expected to happen on 29th January 2020) so that the UK leaves the European Union at 11.00pm on 31st January 2020.

What happens during the Brexit transition period?

Under the Withdrawal Bill, there will be a transition (or ‘implementation’) period until 31st December 2020, during which time the UK will continue to follow EU rules, including new EU laws which come into force during the transition period.

Any extension of the transition period is prohibited. It may still be possible to extend the transition period, but this would require further legislation. This means that timescales will be tight for the UK and EU to negotiate a trade deal to apply once the transition period ends.

During the transition period, most things will stay the same. Our courts will continue to be able to refer cases to the Court of Justice of the European Union (CJEU) and things like the free movement of people will also continue.

Will UK courts be able to depart from EU case law?

At the end of the transition period, most EU law will be ‘retained’ into domestic law. Under previous plans, only the Supreme Court (and the High Court of Justiciary in Scotland) could depart from it (or parliament could by enacting legislation).

However, the Withdrawal Bill will give the Government (via its ministers) the power to decide which courts or tribunals could depart from retained EU case law, the extent to which they can do so, and in what circumstances. If the Withdrawal Bill becomes law as it is, it will therefore give the Government huge sway to depart from EU law.

How will Brexit affect employment law?

There is still a lot of uncertainty around how this could affect workers’ rights. Many areas of employment law do not come from Europe, such as the right not to be unfairly dismissed, the right to the minimum wage, the right to statutory redundancy pay. However, there are other areas which do, such as working time, certain aspects of holiday pay, holiday carry over in cases of sickness absence and maternity leave, and TUPE.

What is crucial to note is that the Withdrawal Bill previously enshrined protections for workers’ rights that currently form part of EU law, but these protections have now been removed. The Government says that these will be included as part of a separate bill, although the details are not yet known.

For more information on how to prepare your business for Brexit, or any other areas of employment law, please do not hesitate to get in touch with one of our employment law specialists who will be happy to help further.

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