The Brexit white paper – what does it mean for employment law?

Ever since the EU Referendum that has led the UK down the path of Brexit, and to the point where the UK will leave the European Union, there has been much discussion amongst UK employment lawyers about what this will mean for employment law. Of course, until the final deal is concluded, we can have no way of knowing exactly what Brexit will mean for employment law. However, with the recent publication of the Brexit white paper, following the meeting of the Cabinet at Chequers which has led to so much controversy, we are now in a better position to see what the UK’s position is, and to examine how it will affect employment law and workers’ rights.

The Brexit White Paper

The so-called Brexit White Paper – entitled ‘The United Kingdom’s exit from and new partnership with the European Union’ – addresses the UK’s position in respect of the agreement it would like to reach with the EU. As such, is not directly about employment law. Rather, the Brexit White Paper published in July 2018 is about the arrangements the UK would like to see in place as part of a deal with the EU.

Perhaps more interesting for UK employment lawyers to consider is an earlier position paper outlining a number of principles which underpin the proposals contained in the most recent document. These principles include the provision of clarity and certainty (including legal certainty), taking control of our own laws and specifically, a provision to protect workers’ rights.

Workers’ rights

Although the principle of legal certainty is certainly an important one, perhaps those specialising in employment law for employees, and any UK employment lawyers along with business and employers, will be keen to understand what the paper says specifically about workers’ rights.

The UK Government explicitly commits to ‘protect and enhance the rights people have at work’ and to retain its “…status as a global leader on workers’ rights”. The conversion of EU law into UK law (see below) is designed to provide continuity at the outset – there will be no sudden changes in the law to leave employers and workers unclear about where they stand. This is reaffirmed in the latest Brexit White Paper. It contains an explicit commitment that

“…Existing workers’ rights enjoyed under EU law will continue to be available in UK law on the day of withdrawal.” [Chapter 1.6.5 The United Kingdom’s exit from and new partnership with the European Union July 2018]

Workers – and the UK population at large – are also reminded of the extra protections that UK law already affords workers as compared to other EU states.

The Government has been keen to highlight the independent review of modern working practices as the basis for an ongoing programme of review of Employment rules to keep pace with the changes in the UK’s labour market. This will include the much-publicised issues around the ‘gig economy’ that have never been far from the headlines in recent months. The Government also commits to more transparent corporate governance, with a place for workers’ voices to be heard on the boards of public listed companies.

Legal certainty

While it may be reassuring to some to hear the Government’s commitment to continuing to protect and extend workers’ rights in the UK once we have left the EU, there is no real detail. Hardly surprising, given that there are issues of huge constitutional significance to be finalised. However, the best employment lawyers recognise that these constitutional issues also impact on employment law matters directly.

The Great Repeal Bill has been on the radar of many London employment law solicitors since the early days following the EU referendum. While the UK has done much in domestic legislation to improve workers’ rights, there is still a significant body of employment law that derives from the European Union.

Incorporating existing EU law into UK domestic law remains a priority for the UK Government under the Brexit white paper with a commitment at the outset to incorporate EU law as it stands at the moment the UK leaves the European Union into domestic law. At that point, all the EU law that has an impact on domestic employment law legislation, will become part of UK law. From that point, the UK legislatures – both central and devolved – will be able to retain, amend or repeal those laws. As far as employment law is concerned, in the main, Westminster retains power over domestic employment law in England, Scotland and Wales. The Wales Act 2017, which came into force on 1st April 2018, specifically retains competence over Employment matters in Wales, where previously it was silent.

Taking control of our own laws

‘Taking Back Control’ has been one of the buzz phrases of the post-EU referendum Brexit era, and the documents issued by the UK Government over recent months give every UK Employment lawyer confirmation that this includes ending the jurisdiction of the Court of Justice of the European Union. This does not mean that previous CJEU case law is redundant – the UK specifically envisages that the existing law will continue to be interpreted as it is currently. As a result, it is anticipated that the UK courts will continue to follow the decisions of the CJEU where appropriate in respect of EU law that is incorporated into UK law on ‘Brexit day’. However, it does mean that if and when UK law starts to diverge from the EU position as incorporated into UK law at the time that the UK leaves the EU, CJEU judgments may start to become less relevant.

The decoupling from the principles of direct effect and the supremacy of EU law is reiterated in the July White Paper. The only scenario in which it is envisaged that the CJEU will have a continuing role as far as the UK is concerned is if the UK participates in an EU agency – for example in connection with security matters.

Clearly there is still a lot to be confirmed – for a start, it is by no means clear that the forthcoming negotiations with the EU will result in a conclusion that resembles the future envisioned in the Brexit white paper or something different. For now, it seems that nothing will change immediately as far as employment law is concerned.

For support in any area of employment law, from recruitment, Employment contracts, discipline and grievance matters and termination, OTS Solicitors can provide the practical and intelligent advice you need. Whether you are an individual with questions about how you have been treated by your employer, or an employer looking for training or advice, we can help. Book your appointment by calling 0203 959 9123 today.