Statement on impact of Brexit on Emplaw Online content
Employment Law Post Brexit
Emplaw guides/cards reflect current law and are updated as the law changes.
The UK remained bound by European law until the end of the implementation period provided for in the Withdrawal Agreement between the EU (31st December 2020).
EU legislation which applied directly or indirectly to the UK before 11.00 p.m. on 31 December 2020 has been retained in UK law as a form of domestic legislation known as ‘retained EU legislation’. The EU Exit Web Archive is the comprehensive and official UK reference point for EU law as it stood at 11.00 p.m. on 31 December 2020.
Directly applicable EU legislation consists of Regulations and Decisions which are directly applicable as law in an EU Member State. Indirectly applicable EU legislation is legislation which require a Member State to make domestic implementing legislation. For example, the UK Working Time Regulations implemented the EU Working Time Directive.
In interpreting this retained EU law:
UK courts will apply decisions of the Court of Justice of the European Union (“CJEU”) that pre-date the end of the transition period, except to the extent that particular courts are given power to depart from those decisions. The European Union (Withdrawal) Act 2018, as originally enacted, provided that the Supreme Court (as well as the ultimate court of appeal on Scottish criminal law) would have such power. Following a consultation by the Ministry of Justice, such power was extended to other appellate courts, including the Court of Appeal.
CJEU decisions post-dating the end of the transition period are not binding on UK courts but the courts may have regard to them so far as relevant . This is based on section 6(2), EUWA which provides that a court or tribunal may "have regard to+ anything done on or after the end of the transition period by the ECJ, another EU entity or the EU "so far as it is relevant to any matter before the court or tribunal" (section 6(2), EUWA).
The Trade and Cooperation Agreement finalised between the EU and the UK just prior to the end of the transition period includes reciprocal commitments not to reduce the level of protection for workers or to fail to enforce employment rights in a manner that has an effect on trade but makes clear that both parties have the freedom and ability to make their own decisions on how they regulate labour and social standards going forward. Any disputes on this part of the agreement will be governed by a bespoke Panel of Experts procedure
Hence, the future shape of employment law will depend on the complexion of future governments and the cases that come before the courts.
There have been some immediate changes to Emplaw content (for example the card on Jurisdiction and Territorial Limitation) and others will be updated as case law and statute law develop. In reading all cards, where there is reference to an EU Directive, it is the text of that Directive as applied on 31st December 2020 and the EU case law of that date which courts must take into account (subject to it being overuled by the apellate courts with power to deviate).
Further background is found in the law card The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit