The UK left the EU on the 31st January 2020 following ratification by the UK and the EU of the Withdrawal Agreement. A transition period then applied until 31st December 2020. During this time for most purposes the UK was treated as if it were still a member of the EU. Therefore, most EU law continued to apply to the UK. It is the European Union (Withdrawal) Act 2018 that ended the supremacy of EU Law in the UK and prepared the legal framework for the UK to withdraw from the EU. The Act meant a conversion of EU law into UK law as it stood at the moment of exit. Meaning that any UK Laws derived from the EU remained applicable. Therefore, this means that any employment legislation derived from the EU remains applicable in the UK, but just on a different constitutional basis.
There is now an end to the principle of the supremacy of EU law to the effect that it no longer applies to any UK enactment or rule of law passed or made on or after 31st December 2020. The supremacy of EU law continues to apply in the UK where there is an inconsistency between an EU directive and UK domestic legislation and the directive was implemented before the end of the transition period, any inconsistency in the law should be resolved in favour of the EU directive.
Regulations have been enacted that have determined that the Court of Appeal in England and Wales are not bound by retained EU case law. This does, however, raise concerns with regard to creating uncertainty in relation to employment law matters. How to interpret retained EU law since the end of the end of the transition period on 31st December 2020 is tricky to determine.
Decisions will now rest with the UK Government as to whether it should retain, amend or repeal the UK employment law that has been derived from the EU. The most likely areas of law to be subject to change are:-
- The Working Time Directive 1998. The UK has the Working Time Regulations 1998 that govern working time and holidays. There may be an overhaul of the way holiday pay works as this is currently a complicated area due to the effects of several previous European Court of Justice decisions.
- Agency Worker Rights – This is an area that could see an overhaul as the Agency Worker Regulations 2010 are quite complex and unpopular.
- The Transfer of Undertakings Protection of Employees Regulations (TUPE) provide the rules for business transfers. These can be difficult to apply in practice.
- The Equality Act 2010 – this deals with discrimination legislation in relation to workers’ protections. The Government has already indicated that it does not want to reduce the protections as set out in this legislation. However, there may be some changes to discrimination based claims.
As it is early days since Brexit only time will tell as to how exactly this will impact on the future of employment law in the UK. Watch this space …
For all employment law related advice and representation please contact Jennifer Carpenter solicitor and partner.