Brexit. Employment Law. A House of Commons Library Briefing Paper.

The House of Commons Library has produced a short briefing paper on what the implications might be for employment law following Brexit.

Commentators differ in their opinions on what the Government will do with European Union employment law, and the briefing paper adds very little save for including a helpful summary table of which rights might be affected.

In mid-July the Brexit Minister, David Davis, said: “All the empirical studies show that it is not employment regulation that stultifies economic growth, but all the other market-related regulations, many of them wholly unnecessary”, suggesting that there is, at present, few plans to amend or repeal European Union employment rights. This was confirmed by the Prime Minister at the Conservative Party Conference in October 2016 when she set out the Government’s proposals for the Great Repeal Bill, which will remove the European Communities Act and transpose the European ‘acquis’ into British Law.

Whilst the Prime Minister has sought to reassure by confirming workers legal rights will continue to be legally guaranteed we may presume that the focus on exactly which laws the Government want to change will come later. How these will rights and protections will change very much depends on social attitudes and the Government in office at the time as Michael Ford QC rightly pointed out in his advice to the TUC.

Regardless of Government reassurances and plans for a Great Repeal Bill, the exit from the European Union does raise concern as to the guarantee of UK employment rights currently guaranteed by European Union law. A substantial component of UK employment law is based on European Union employment law which provides a minimum standard that domestic employment law must not fall below. In some cases European Union law has entrenched provisions that already existed in domestic law: for example, sex and race discrimination and certain maternity rights. In others, new categories of employment rights have been transposed into domestic law to comply with emerging European Union obligations. Some of these were resisted by the UK government during European Union negotiations (e.g. agency workers’ rights and limitations on working time). The point to note is that without a European Union minimum standard, which the UK currently exceeds in a number of areas, relevant legislation may be watered down and this may be purely at the discretion of the Government.

Under current proposals the entire European Union body of employment law will be transposed to domestic law. However, undoubtedly in time, certain provisions will be amended to a greater or lesser degree. Within the current Government proposals there is scope for the modification of protections and rights, even if the underpinning right remains. How these will be shaped is yet to be seen.

For further consideration on what areas of employment law are subject to European Union law and how they are currently transposed within domestic legislation please click here to see the full House of Commons Briefing Paper and the helpful summary table of affected rights.

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