Brexit and Employment Law - Kathleen Heycock October 2018
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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?
2EU (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.
3What 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.
4Government 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.
5What 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 6Theresa 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”.
811
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?
12•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
66 Lincoln’s Inn Fields
London WC2A 3LH
+44(0)20 3375 7000
enquiries@farrer.co.uk
www.farrer.co.uk
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