As you are probably aware, a huge portion of the UK’s employment law comes from the EU including discrimination rights, transfer of undertakings information, family leave, working time regulations and duties to agency workers. In the White Paper on the future UK-EU relationship the government proposed maintaining current UK employment laws so that existing workers’ rights will be unchanged following exit day (at going to print, 29 March 2019).

It is thought that most employment law will remain the same and the Government may gradually repeal some aspects, or modify some laws to make them more fitting with UK business. There are three key reasons for this approach:

  1. Many EU employment laws were already provided by UK law;
  2. A large amount of employment law is regarded (consistently in surveys and in consultation) by both employers and employees as “a good thing”;
  3. The need to stay in a relationship with the EU which will require similar trade and employment law to be in place if cross-border business is to be enabled/ continued. It is important to note that the price of a free-trade agreement may well come at the price of accepting EU social employment regulation as is the case for non-EU members of the EEA, such as Norway.

Whilst the European Court of Justice will no longer bind the decisions of the UK courts however parties will still be able to seek to rely on decisions that may be relevant in determining their dispute. It seems that the Supreme Court will follow ECJ precedence in order to preserve legal certainty but there will be nothing to prevent it from departing from it.

Last week, Theresa May unveiled how the UK government will handle emerging EU laws concerning workers’ rights after Brexit: “After Brexit it should be for Parliament to decide what rules are most appropriate, rather than automatically accepting EU changes. When it comes to workers’ rights, this Parliament has set world-leading standards and will continue to do so in the future, taking its own decisions working closely with trade unions and businesses.”

This follows the Government’s commitment not to diminish workers’ rights derived from EU directives. Parliament will be given the right to consider any future changes in EU law that strengthen workers’ rights or workplace health and safety standards, and then vote on whether they should be adopted into UK law.

Trade unions and businesses will be given a new and enhanced role in this process, and will be consulted with in preparing updates on changes to EU employment legislation. Parliament will be given regular updates giving MPs a choice on the action government will take in response.

The first test for this new regime will be the following new EU Directives which arrive post-Brexit:

  1. The Work Life Balance Directive introduces new rights for parents and carers, such as two months’ paid leave for each parent up until the child is eight and five days’ leave for those caring for sick relatives;
  2. The Transparent and Predictable Working Conditions Directive will set the terms of employment for workers by their first working day and provides more stability if you work in shifts.

The issue with EU law in the past has sometimes been in the individual nations having to try to put into place directives that have been cobbled together by the EU in a manner which all feel able to agree to but which will not actually suit any one country – often leading to it being compared to a camel on the grounds that “a camel is a horse designed by committee”.

An example of this in employment terms is the Transfer of Undertakings Regulations (TUPE) which had the fair and proper intention initially of protecting workers employed in businesses that were sold (ensuring the workers could transfer on the same protected terms and conditions). But the law has never really been able to practically and pragmatically deal with insolvency situations where far more flexibility is required to enable businesses to be sold and to keep running (thereby preserving at least some jobs). And the gradual chipping away and eventual landslide that led to service provision changes being included within the auspices of TUPE still astonishes some employers who may sometimes understandably think that if they change provider they will get a better service, only to find out that the same staff will be carrying out the work.

It seems to me that there needs to be a balance found that protects the original idea of TUPE but that allows for a more dynamic business environment that could ultimately save jobs but also improve service.

Daryl Cowan, Partner

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