I have been asked quite a few times how Brexit will affect employment law. Currently nothing has changed, however, this overview may be helpful to explain how things may change.
Many existing employment rights, such as unfair dismissal and the minimum wage, do not stem from EU law. In other employment rights, the UK provides additional protection to the EU minimum. For example, the EU provides for a 4-week holiday entitlement and the UK have extended it to 5.6 weeks.
Although much UK employment law is derived from EU law, the UK’s withdrawal from the EU is unlikely in itself to have an immediate impact on employment law. When the UK leaves the EU, existing EU law will be converted into domestic law. Most EU Directives are already implemented in the UK by regulations or Acts of Parliament; for example, the EU equality Directives are implemented by the Equality Act 2010. It will be for Parliament to decide whether to retain, amend or repeal domestic legislation.
It may be possible, however, that the UK will be required to continue to implement parts of EU legislation as a condition of a negotiated trade deal between the UK and EU.
Tribunal court decisions are sometimes influenced by EU law, for example TUPE, working time and discrimination law. Under the European Union (Withdrawal) Act 2018, UK courts will not be bound by decisions of the European Court of Justice made on or after the exit date. However, ECJ decisions made before that date will continue to bind UK courts in the interpretation of relevant laws and will have the same precedent status as decisions of the Supreme Court.
Existing contracts of employment and HR policies and procedures often reflect certain EU rights relating to, for example, working time and sickness absence. Needing to reduce these entitlements post Brexit could be difficult from a legal and employee relations perspective.
However, like other areas of Brexit, it is impossible to predict any of this with any degree of certainty, so for now, it is watch this space.