Employment law implications of Brexit

By Dr Mirza Ahmad LLD(Hon), LLM, Barrister

Posted: 2nd May 2018 08:32

The UK is heading into a sea of uncertainty and choppy waters as it negotiates a best divorce deal from the European Union and then implement change arising from the June 2016 referendum which gave the UK government a legitimate mandate for the UK to exit the EU. However, the Referendum Act 2015 never determined ‘how’ or gave the legal power to the Government to exit the EU.
 
That power, as established by the Supreme Court in the Miller case[1], remains the sole preserve of the UK Parliament and forced the Government to introduce the European Union (Withdrawal) Bill 2017, which is currently going through the various Parliamentary stages.
 
Accordingly, until Exit Day, it is most important to recognise that the UK has not actually exited from the EU and its institutions. The UK will, of course, never exit from Europe. Until Exit Day, therefore, all EU laws and jurisdiction continue to apply and bind the UK as they did before the UK’s referendum. This brief article looks at some, not all, of the potential implications of UK’s decision to exit from an employer/employee perspectives.
 
In a nutshell, on Exit Date – date still to be determined but likely to be on or before 31 March 2019 :-

(a) any newEU laws (unless saved by local domestic UK law) will no longer become effective or operative within the UK, but any existing EU laws (prior to exit day), along with any UK domestic Acts of Parliament and/or secondary legislation (unless repealed by local domestic UK law) will continue to apply in the UK and remain of binding effect, applicable and arguable in UK courts; and
(b) Any developments in the jurisprudence by the European Court of Justice, postexit day, will no longer be binding on UK courts and will become only of persuasive effect.
 
The government, in its House of Commons Briefing Paper, CBP 7732 of 10 November 2016, made it clear that:
 
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…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…The Government has already indicated that it would seek to preserve employment rights through the ‘Great Repeal Bill”.
 
The House of Commons Briefing Paper is a useful starting point for relevant laws in this area as it includes a most useful Annex which sets out relevant EU and UK domestic law implementing the same. It lists, for example, relevant laws relating to Agency, Data Protection, Discrimination and Health & Safety, with the key applicable EU and UK laws.
 
Leaving aside the current political debate about trade deals and the fine detail of UK’s ultimate divorce settlement from the EU, from an employer / employee perspectives, the following main areas of impact, rights and responsibilities must be considered and prepared for - in the time available:
 
(a) Equality law – as enshrined by Article 157 on the Functioning of the European Union, relevant Working directives (such as 97/7 on social security, 2006/54 on equal pay and treatment, 2000/43 on race and ethnic origin, 2000/78 on disability, sexual orientation, age etc., and 2010/41 on self-employed);
 
(b) Family friendly laws – as enshrined by Directives 92/85 on pregnant workers, 97/81 on part-time workers, 99/70 on fixed term work, 2008/104 on agency workers and 2010/18 on parental leave;
 
(c) Working Time laws – as enshrined by Directives 2003/88 on working time, 94/33 on young workers, 2000/79 on working time in civil aviation, 2005/47 on working conditions in cross-border railway services; 2002/15 on working time in road transport and Regulations 561/2006 on daily and weekly driving time;
 
(d) Health and Safety laws – as enshrined by Directives including 89/391 framework, 89/364 on minimum requirements for workplace, 89/656 on PPE, 90/70 on display screen equipment, 90/269 on manual handling, 89/58 on safety signs, 2009/104 on work equipment, 2003/10 on noise and 2009/148 on asbestos;
 
(e) Information & consultation – as enshrined by Directive 2002/14, generally, and specifically by Directives 2009/38 re European Work Councils, 2001/86 and 2003/782 on information and consultation in ECS and Cooperative society; and
 
(f) Economic Restructuring – as enshrined by Directives 2001/23 on Transfer of Undertakings (TUPE), 98/59 on collective redundancies and 2008/94 on insolvency.
 
Regrettably, the limit on the length of this article does not permit a detailed exposition of those areas. In summary only, as respects the European Union (Withdrawal) Bill 2017, it is intended that, on and from Exit Day, EU law will no longer be supreme in the UK, but UK law will once again become supreme. This will reverse the position created by the European Communities Act 1972, which was the ‘conduit’ for all EU law and jurisprudence into the UK.
 
Accordingly, any ‘new’ laws passed by Parliament after Exit Day will not be interpreted by the European Court of Justice. As respects ‘exiting’ EU/UK law derived from EU law and of direct effect in the UK prior to exit day, the stated governmental and position under the Withdrawal Bill is that such laws will be ‘preserved’ and the UK courts will interpret the same, including the same being mindful of – but not being bound by – any ECJ / EU developed jurisdiction, post Exit Day. Only time will tell if the UK courts will, indirectly, continue to ‘develop’ (and be developed by ECJ jurisdiction) in areas preserved by the Withdrawal Bill.
 
Obviously, those EU laws which were derived from and implemented in the UK by primary legislation (e.g. Equality act 2010, Employment Rights Act 1996 and Health & Safety at Work etc Act 1974) and/or secondary legislation under the same, will continue to apply after Exit Day – until repealed and/or amended by Parliament as per other UK domestic legislation. Only time will tell if the UK’s ship docks safely or drifts rudderless after the choppy seas have calmed.

Called to the Bar by Gray’s Inn, in 1984, and prior to joining St  Philips Chambers, in November 2011, Mirza excelled in his 26 years career in  local government and is nationally recognised as a top performing lawyer.. He has also been a Member of the General Council of the Bar for England & Wales since 1995 (save for 1998).
Mirza practices from St Philips Chambers in London (at 4 Field Court, Gray’s Inn, WC1E 6HB), Birmingham (at 55 Temple Row) and in Leeds (41 Park Square). He is also authorised to take direct instructions from members of the public under the Bar’s Public Access Rules.

Mirza is nationally recognised as an expert in local authority law and employment law. From 2000 to 2011, he was the Chief Legal Officer and Corporate Director of Governance of Birmingham City Council, with leadership over 800+ staff.

He is also the General Editor of two legal encyclopaedia publications: Lexis Nexis “Local Authority Employment Law, Practice and Procedure” (since 2009); and Butterworth’s “Knight’s Guide to Public Procurement Law and Practice” (2007-2014).

Dr Mirza Ahmad can be contacted on +44 (0)121 246 7015 or by email at civil@st-philips.com 


[1]R. (on the application of Miller) v Secretary of State for Exiting the EuropeanUnion[2017] UKSC 5
 

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