Employment Law After the Brexit Vote – What Happens Now?

Now that the bleary post-referendum period has passed and we have had the opportunity to digest what has happened, it should be possible to think about the e ects of the Leave vote more calmly.

Has anything changed since the leave vote?

No. We have had an advisory referendum and we have been told that no one on this side of the Channel is going to start the formal process of leaving just yet. All of our Treaty obligations remain intact, as do relevant employment-related directives and, of course, all of our UK statutes, regulations and case law.

Will anything change between now and our actual exit from the EU?

Not necessarily, but we might notice the UK Government taking less interest in implementing new EU directives. Is the Commission likely to chase the UK around to implement directives if it knows that we are on our way out?

Until we are no longer bound by our current Treaty obligations and until EU directives cease to have any legal e ect, UK legislation will still have to be interpreted so as to comply, where necessary, with the Treaty and EU legislation. That ought to mean that any current litigation (and presumably any new litigation started before we leave the EU) will be handled as it is now, in terms of the effect of Treaty obligations and directives.

However, the picture for existing litigation once we have left the EU is less clear. Normally the law on which a claim is based remains the same, even if the law is changed by our Parliament after legal rights have accrued and legal action has commenced. However, why would our Courts try to interpret UK law in line with a Treaty that no longer binds us, even if it did bind us when the action first arose? It’s not a hard question when only domestic law is involved. It isn’t anything like as clear in this case.

What else changes after we leave?

Leaving aside the puzzle mentioned above, once we leave the EU we no longer have EU law hovering in the background. Not all UK employment law is based on EU law. Unfair dismissal law, for example, has nothing to do with the EU. Nor has the right of employees to statutory redundancy pay. Even those very “UK” rights are touched by EU law, however. When an employer becomes insolvent, the rules on guaranteed payments of statutory re- dundancy and notice pay, for example, have had to comply with the EU directive on insolvency.

The Working Time Regulations and TUPE are both based on directives. A post-exit UK Government could do away with both, if it had the political will do so. Collective redundancy consultation is another EU-based right. A Government seeking to please the business world might well have a look at that area too.

And then we get to discrimination law. Not all of it, by any means, originally came about because of EU law. Our law on equal pay, sex discrimination and race discrimination was passed without any pressure from an EU directive. The same was true of the Disability Discrimination Act, which was the result of a campaign in the UK. Having said that, however, the Equal Treatment Directive and the Lisbon Treaty have come to represent a su- perstructure that supports anti-discrimination laws and prevents UK Courts (or its Parliament) from removing anything that EU law now guarantees.

That guarantee will disappear once we leave the EU, it seems. In plain terms, a UK Government with the right political support could wipe all of that legislation away and start again, with no risk of the Court of Justice of the EU standing in its way. Interesting, however you look at it.

It’s not about human rights – yet

Our human rights legislation has no direct link to our EU membership. The UK was one of the founding signatories to the European Convention on Human Rights in the 1950s, long before we even applied for membership of the European Economic Community. Our decision to give the Convention statutory status in the UK was not imposed on us either. When politicians and some media commentators get het up about human rights law, they are not complaining about the EU (although the Human Rights Act’s critics are usually not big fans of the EU either).

When a few politicians and parts of the media have agitated about leaving the Convention, whether or not they have been conflating that with leaving the EU, the one relevant EU-based argument has been that the EU requires its members to be signatories to the Convention. The UK could always have repealed the Human Rights Act. Once it leaves the EU, there would nothing to stop it leaving the Convention too – if that decision had political support in the UK, of course.

If you wish to discuss your recruitment and retention strategies, reasonable adjustments for disabled employees or any other concerns regarding disability discrimination, please contact Eagle HR on 0808 168 5780.

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