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' or 'REUL'. 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.
The European Union (Withdrawal) Act 2018 provided for interpreting this retained EU law as follows:
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 The European Union (Withdrawal) Act 2018, as originally enacted, provided that the Supreme Court (as well as the ultimate court of appeal on Scottish criminal law) would have such power.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).
In June 2022, a dashboard of retained EU law was published. It has since been updated but it is not a comprehensive list.
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, it was clear that the future shape of employment law would depend on the complexion of future governments and the cases that come before the courts.
There were 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).
On 29th June 2023, the Retained EU Law (Revocation and Reform) Act received Royal Assent. It is designed to dramatically speed up the process of removing and replacing retained EU laws by providing for the following:
- It gives government ministers new powers to reform any EU-based law introduced into UK law by a statutory instrument, such as the Working Time Regulations 1998.
- It amends The European Union (Withdrawal) Act 2018 to end the supremacy of EU law on 31 December 2023, and removes all directly effective EU rights ( i.e. Regulations and Decisions which are directly applicable as law in an EU Member State) on 31 December 2023.
- It revokes a very limited list of EU-based laws which are listed in Schedule 1 to the Act (apart from some minor/obsolete regulations, there are no employment laws listed). All other REUL is kept until amended, replaced or revoked.
- It amends The European Union (Withdrawal) Act 2018 as regards the interpretation and effect of retained EU law. It encourages the Court of Appeal and Supreme Court to make more use of their existing powers to overturn EU-based caselaw (i.e. both ECJ decisions and UK decisions that have been determined or influenced by ECJ decisions) by amending the points they must take into consideration, by having regard to
'(a) the fact that decisions of a foreign court are not (unless otherwise provided) binding;
(b)any changes of circumstances which are relevant to the retained EU case law;
(c)the extent to which the retained EU case law restricts the proper development of domestic law.”’
- It amends the sections of the European Union (Withdrawal) Act 2018 on the interpretation of retained EU law to introduce a new reference process, enabling a lower court which is bound by EU-based caselaw to refer a point of law to the Court of Appeal or Supreme Court (which are not bound) so they can decide if it should be overruled, and gives the Attorney Generals in England, Wales, Scotland and Northern Ireland, the power to intervene in cases where the courts are considering overruling EU-based caselaw and make references to higher courts if the lower court hasn’t done so.
- It gives a new label to retained EU-based laws. From 2024 they will be called “assimilated laws”.
- It requires the government to update its Retained EU law dashboard and report to Parliament on its progress with revoking and reforming retained EU law and future plans.
Further background is found in the law card The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit