Brexit and Employment Law - Kathleen Heycock October 2018

Brexit and
Employment Law
Kathleen Heycock
October 2018

Brexit: which way will it go?

Last year:

 •Government rhetoric: no reduction in
  employment protection.

 •Predicted UK will not become an “offshore
  jurisdiction”.

 •Predicted international employment cases /
  arbitration likely to increase in number and
  complexity.

Are we any further forward in what we know?

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EU (Withdrawal) Act
As of exit day (29 March 2019):

• Repeals the European Communities Act
  1972

• Ends the supremacy of EU law

• Converts EU law into UK law

Currently envisaged that the effects of the
Act will be deferred until the end of a
transition period – ie 31 December 2020.

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What about case law?

• Judgments of the Court of Justice of the
  European Union (CJEU) that apply before
  Brexit will continue to be binding on UK
  courts.

• Post-Brexit:
    • Decisions of CJEU will no longer be
       binding on UK courts.
    • No references to ECJ.
    • National courts are not required to
       have regard to anything done by EU.

   But: when interpreting retained EU law,
   UK courts will be able to consider post-
   Brexit actions by the EU and CJEU.
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Government White Paper
A strong emphasis on upholding workers rights:

• “The UK firmly believes in the importance of strong labour
  protections.”

• “Existing workers’ rights enjoyed under EU law will
  continue to be available in UK law on the day of
  withdrawal.”

• A commitment to maintain high standards in employment
  and “to meet international obligations in these areas”.

• A proposal that the UK and EU commit to the non-
  regression of employment law standards.

               But dependent on a deal.
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What if there is no deal?
Government paper - Workplace rights if there is no
Brexit deal

• Reiterates the government’s firm belief in the
  “importance of strong labour protection”

• Commitment that employment rights will remain
  unchanged.

• Small amendments to language of workplace
  legislation.

• Potential impact on:
     • European Works Councils
     • The rights of employees on employer
       insolvency
     • Data protection                               6

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Theresa May: “no deal for Britain
    is better than a bad deal for
Britain… [freeing the UK] to set the
competitive tax rates and embrace
 the policies that would attract the
    world’s best companies and
    biggest investors to Britain”.

                                           Priti Patel MP (Leave
                                        campaign): “if we could just
                                        halve the burdens of the EU
                                          social and employment
                                       legislation we could deliver a
                                          £4.3 billion boost to our
                                        economy and 60,000 jobs”.
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Areas for change?
•Agency worker regulations – complex
 and unpopular

•TUPE – small changes, such as making
 it easier to harmonise terms

•Holidays – calculation of holiday pay and
 the accrual of holiday while off sick

•Working time – removal of 48 hour cap

•No cap on discrimination compensation?

•Collective information and consultation?

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•Carry out an audit of the workforce – which employees
                 are EEA nationals in the UK or British nationals in the
                 EEA?
  What can
employers do?   •Identify potential skills gaps and labour shortages if
                 there is a decline in EU workers – plan how to address.

                •Support existing EEA workers in understanding the
                 implications of Brexit and the options available to them.

                •Check mobility clauses and international assignment /
                 relocation policies.

                •Data protection – if you receive personal data from EU
                 countries, work with your EU partners to identify a legal
                 basis for those transfers.

                •Review agreements for European Works Councils in
                 the event a no deal means there is no reciprocal
                 agreement.

Farrer & Co LLP
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London WC2A 3LH

+44(0)20 3375 7000
enquiries@farrer.co.uk
www.farrer.co.uk

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