Much has been said about workers’ rights post-Brexit. What do we know now?

The Great Repeal Bill itself hasn’t been published yet, but here’s what the latest White Paper tells us.

Workers’ rights

The White Paper envisages that “workers’ rights that are enjoyed under EU law will continue to be available in UK law after we have left the EU”.

The government’s stated aim is to “allow businesses to continue operating knowing the rules have not changed significantly overnight” and to provide “fairness to individuals, whose rights and obligations will not be subject to sudden change”.

Post-Brexit: old EU case law

A hot topic has been the possible fate of EU decisions, such as those meaning that results-based commission must be included in holiday pay.

The government has repeatedly stated that Brexit will end the jurisdiction of the European Court of Justice (ECJ). And it has made clear that courts will not refer cases to the ECJ.

However, ECJ decisions made before Brexit will continue to bind UK courts (with regard to EU-derived laws). That is unless:

  • Parliament legislates for a different approach; or
  • The Supreme Court considers that “it appears right” to depart from the previous EU position. The government believes the Supreme Court will take a ‘sparing approach’ to this, only departing in ‘exceptional’ cases (i.e. ECJ judgments will have the same status as the Supreme Court’s own precedents‎). It is examining whether further clarity should be given as to the circumstances in which the Supreme Court might make such a departure.

The White Paper is clear about the government’s position on holiday pay: ECJ case law will be carried over, to avoid uncertainty for workers and employers.

So, if you were hoping for a change for holiday pay post-Brexit, the White Paper has pretty much dashed those hopes. A Supreme Court departure from the current position seems incredibly unlikely; and there’s no sign of the government having any appetite for change, at least for now.

Post-Brexit: new EU case law

UK courts will continue to look at EU treaties (as they existed at the point of Brexit) to interpret EU-derived laws. But would this include interpreting those treaties as per post-Brexit ECJ case law, assuming the treaty hasn’t changed?

There’s a question mark on this issue just now: it may depend on the terms of any Brexit deal, or Parliament may take a view.

Post-Brexit: employment legislation

Wherever possible, the Great Repeal Bill will convert EU law as it stands at Brexit into UK law. It won’t make major policy changes.

However, after that, Parliament will be able to amend or repeal EU-derived laws. The intention is that, if Parliament does pass a new law, and this conflicts with old EU-derived law, new primary legislation will take precedence.

But the extent to which employment law will actually change will depend on various factors:

  • The shape of the UK’s future relationship with the EU – alternative trade arrangements may involve accepting some (or even all) EU employment legislation.
  • Changes to primary legislation require Parliamentary time and approval (which will be contingent on the future make-up of Parliament).
  • Whether reform is politically desirable – the UK has come to expect a certain level of workplace protection. Wholesale changes to the likes of discrimination law seem highly unlikely.
  • Many employment rights, including unfair dismissal and the minimum wage, don’t stem from the EU. In other cases, UK protection exceeds the EU minimum (maternity leave and the right to 5.6 weeks’, as opposed to the EU 4 weeks’, holiday are common examples). In these cases Brexit won’t, of itself, spark change.

Even if changes are made, your internal policies or even contracts of employment might reflect certain EU rights (for example on working time, sickness absence or equal opportunities). Reducing entitlements could be difficult from both a legal and employee relations perspective.

Keep up-to-date with the latest developments

Workbox users can access our dedicated page Brexit: Immigration and employment law at any time – we keep this updated to reflect the latest developments. Also available to all is Brodies’ dedicated Brexit hub.

Any more information on EU workers?

The White Paper states that nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval. This doesn’t mean that, ultimately, nothing will change for EU workers, just that Parliament will be given an opportunity to debate the future approach to immigration.