Our Louise Taft was invited to comment in the Employment Law Journal on what may happen to workers’ rights after Brexit in her capacity as co-chair of the Employment Lawyers’ Association’s Brexit Standing Committee.
Much of the UK’s employment law implements EU Directives (for example TUPE or the Working Time Regulations). In some cases, EU Directives have been introduced in areas previously covered by existing UK laws (such as discrimination). EU citizens have the right to seek a reference to the ECJ for an opinion on to how EU Directives should be interpreted. References have been made from the UK covering issues including equal pay, pregnancy discrimination, disability discrimination and the right to paid holiday. In many but not all of those cases, the interpretation of the ECJ has been more favourable to workers than the position previously understood in UK law.
ELA has identified that removing the ability of parties to seek references to the ECJ could lead to a differences between UK and EU employment law. If UK courts are no longer bound by ECJ decisions, they could interpret EU Directives differently than the rest of the EU. This would mean that even if no attempts are made by government to repeal or amend workers’ rights after Brexit, we could still see them affected by leaving the EU.
The ELJ article covered what might happen in three scenarios:
• No Deal
• Dynamic Alignment as promised by Theresa May and demanded by Labour
• A Norway/Switzerland model, sometimes known as Common Market 2.0
No Deal would allow the UK to repeal or amend any EU based law. UK citizens would no longer have the right to ask the ECJ to interpret legislation covered by an EU Directive. Many of those advocating No Deal pursue a deregulation agenda. We could therefore see significant reduction in workers’ rights.
The current government has promised that there would be no change to workers’ rights after Brexit and suggested “dynamic alignment”. This would require Parliament to vote on any change to workers’ rights covered by the EU and to consider whether any new rights implemented by the EU should be replicated by the UK. However, a key “red line” is that the ECJ will no longer have jurisdiction over the UK, so we could still see differences in the way laws are interpreted in the EU and the UK. Parliament would still have the option to vote to change EU based laws, and might not vote to replicate new laws. Significant difference could still emerge.
Norway is a member of the European Economic Area (EEA) and so implements most EU Directives covering workers’ rights. Switzerland does so in return for bilateral trade agreements. Both are subject to the EFTA Court, which tends to follow ECJ decisions. Any trade deal with closer ties to the EU is likely to come with similar responsibilities, and so would involve less divergence from EU workers’ rights.
How can we help?
Whatever the future holds, workers’ rights are likely to be affected. As co-chair of the ELA Brexit Standing Committee, Louise Taft is well placed to advise how that might affect you or your business. Contact her on 020 7935 3522 or email@example.com to discuss any employment issue.